PEOPLE v. WATTERS (1985)

The sole issue presented in this appeal is whether a misdemeanor violation of Penal Code section 273a(2), endangering a child, which results in a death can support a judgment of involuntary manslaughter based on the theory that the killing was in the commission of “an unlawful act not amounting to a felony.” ¹  We conclude that it can.

Defendant and his wife shared a bedroom with their five month old infant daughter.   According to them it was their practice when they desired to engage in sexual intercourse to place the baby in a small living room closet and retrieve her after their sexual activity was concluded.

The closet was unheated, unventilated and littered with combustible rubbish and rat droppings.   An open container of noxious liquid plastic varathane and some parts from an automobile were also in the closet.

On the night of December 16, 1980, defendant placed the child in the closet but failed to retrieve her before falling asleep.   Around midnight the residence caught on fire.   Defendant and his wife made their way to safety.   The child perished in the fire.

Defendant was charged with murder, arson (Pen.Code, § 451) and felony child endangering (Pen.Code, § 273a(1)).   Despite rather strong evidence of defendant's intent to kill the child and the incendiary nature of the fire, a jury found him guilty of the lesser included offenses of involuntary manslaughter and misdemeanor child endangering.   Defendant was acquitted of the arson charge.

Relying on People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580, and People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, defendant attempts to equate misdemeanor-manslaughter to the felony-murder rule and argues that because the child-endangering of which he was convicted was an integral part of the homicide, it was merged into the homicide.   Further defendant contends that the very language of Penal Code section 273a ² bars the misdemeanor version of the offense from serving as a misdemeanor which will support a conviction of manslaughter for a death resulting from its commission.

In Ireland, supra, the Supreme Court held that an assault with a deadly weapon or by means of force likely to produce great bodily injury or death in violation of Penal Code section 245, which actually produced a death, could not support a murder conviction by the application of the felony-murder rule and that independent proof of the usual requirement of malice was required.   The assault was said to be an integral part of the homicide and thus merged into the homicide.

That rationale was later applied in a case where felony child abuse was the underlying felony.   In People v. Smith, supra, the court reasoned that since felony child abuse consisted of willful conduct under circumstances likely to produce great bodily harm or death, and since the abuse in that case was assaultive in nature, the conduct of defendant, although labelled felony child abuse, equated with a violation of Penal Code section 245 and thus would also merge in the homicide.

In People v. Smith, supra, however, the court did list, with apparent approval, several Court of Appeal opinions in which the Ireland doctrine was held to be inapplicable—cases in which the underlying felony did not have “as its primary purpose an assault on the person of the victim.”  (Id. at 805, 201 Cal.Rptr. 311, 678 P.2d 886.)   These cases are apparently embraced in the Supreme Court's refinement of Ireland to be found in the case of People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, which held that the felony-murder doctrine could be applied where the underlying offense had an “independent and felonious purpose.”

Defendant's attempt, by analogy, to apply the Ireland felony-murder “merger” rationale to the misdemeanor-manslaughter approach in this case initially founders on the fact that the act of placing the child in the closet was not assaultive in nature, had an independent purpose and thus was not an integral part of the homicide.

Beyond that, however, the Ireland rationale simply has no room to operate in the misdemeanor-manslaughter situation.   In the final analysis the “merger” doctrine, where it is applicable, has the effect of requiring that the jury find the existence of malice before returning a verdict of murder.   Manslaughter, of course, is a killing without malice.   The mens rea or mental element for that offense is to be found in that required by the underlying misdemeanor or in criminal negligence.   No additional mental element is required.

We now turn to defendant's other attack on the judgment.   By definition, the misdemeanor version of section 273a as described in subdivision (2) thereof, occurs under circumstances “other than those likely to produce great bodily harm or death.”

Relying on what was essentially dicta in People v. Wright (1979) 60 Cal.App.3d 6, 131 Cal.Rptr. 311, an opinion from the Court of Appeal for the Third District, defendant argues that in that form of involuntary manslaughter described as an unlawful killing “in the commission of an unlawful act not amounting to a felony” the misdemeanor must be one which is “inherently dangerous to life,” a circumstance negated by the language of Penal Code section 273a(2).

In People v. Wright, supra, the court so stated and found error in an instruction which would have permitted the jury to find involuntary manslaughter in a case of death resulting from misdemeanor child abuse.   The error, however, was there held to be non-prejudicial since, according to the court, defendant was unquestionably the “agent of injury” and the injury in fact was sufficient to constitute a violation of Penal Code section 273a(1) felony child abuse.   Thus defendant could and should have been convicted of second degree murder.   The jury's verdict of manslaughter was viewed simply as an act of leniency, the court observing that the defendant actively benefited from the manslaughter instruction.

The case at bench could be disposed of on the same basis.   Defendant was the agent of injury—admittedly he placed the child in the closet.   The circumstances of placing a helpless five month old infant in the conditions described above was likely to produce great bodily harm or death in a number of ways.   Thus defendant was guilty of felony child endangering ergo murder in the death of the child.

We prefer, however, to rest our decision on the grounds that a violation of Penal Code section 273a(2), misdemeanor child abuse, is that type of misdemeanor which will meet the requirements of the manslaughter statute.   By this we hope to dispel any confusion that may have been generated by the dicta in People v. Wright, supra.

The discussion of Penal Code section 273a(2) in People v. Wright purportedly stemmed from the holding in People v. Stuart (1956) 47 Cal.2d 167, 302 P.2d 5.   In our opinion the court in Wright simply misread the thrust of the Stuart opinion.

The court in Wright begins its discussion of the issue at page 10 as follows:  “When an unintended killing results from an unlawful act not amounting to a felony, the manslaughter statute comes into play.   Settled judicial interpretation has tempered the statutory definition of involuntary manslaughter:  when the killing results from an ‘unlawful act, not amounting to a felony,’ the crime is involuntary manslaughter only if the act is dangerous to human life or safety.  (People v. Stuart, 47 Cal.2d 167 [302 P.2d 5].)”  (Emphasis added.)

Later in the opinion on page 11, the court states:  “The prime distinction between felony-murder and non-negligent involuntary manslaughter is this:  the former results from a felony inherently dangerous to life, the latter from an unlawful act other than a felony (e.g., a misdemeanor) which is inherently dangerous to life.”  (Emphasis added.)   In this latter passage, the court inexplicably ignores the word “safety,” which appears in People v. Stuart.

People v. Stuart, supra, involved a pharmacist who as a result of the mislabelling of a container in the pharmacy where he worked, mistakenly and unintentionally used sodium nitrate instead of sodium citrate in a compounding a prescription.   An infant died from being given the medicine.   At the time, section 26280 of the Health and Safety Code punished as a misdemeanor any dispensing of an adulterated or mislabeled drug regardless of the existence of any negligence or intent.   The statute, in effect, imposed strict liability.

The Supreme Court, in Stuart, reversed the pharmacist's conviction of manslaughter, holding at page 173, 302 P.2d 5:  “To be an unlawful act within the meaning of section 192, therefore, the act in question must be dangerous to human life or safety and meet the conditions of section 20.” ³  (Emphasis added.)

The reference to section 20, of course, was to require that the misdemeanor not only be dangerous but be one which required some form of culpable state of mind.   As we read People v. Stuart, the primary focus of the opinion was on the latter requirement of a culpable mens rea rather than the issue of the degree of danger posed by the physical element of the crime.

“Safety,” as defined in Webster's Seventh New Collegiate Dictionary is “The condition of being safe from undergoing or causing hurt, injury, or loss.”   An act which is inherently dangerous to human life is quantitatively different from an act which is dangerous to personal safety.   Since the court in People v. Stuart, supra, spoke of danger to life or safety, that case does not stand for the proposition that the underlying misdemeanor must always be life-threatening.

Interestingly enough, the Court of Appeal for the Third District later speaking through Justice Reynoso in People v. Clark (1982) 130 Cal.App.3d 371, 181 Cal.Rptr. 682, while restating its position in People v. Wright as to the need for the underlying misdemeanor to be life threatening, rejected a defendant's claim that simple battery would not support a conviction of involuntary manslaughter.   On page 382 of that opinion that court conceded:  “It has frequently been held that assault and/or battery will support a conviction of involuntary manslaughter where death is caused thereby.   [Citations.]  Indeed, Witkin reports that the great majority of the cases involve assault or battery.  [Citation.]  In People v. Williams (1975) 13 Cal.3d 559, at pages 563 and 564, 119 Cal.Rptr. 210, 531 P.2d 778, the California Supreme Court held that a trial court erred in failing to instruct the jury on battery as the underlying crime in an involuntary manslaughter instruction.”   Clearly, simple assault or battery are not crimes which are ordinarily life threatening.

The “unlawful act” referred to in Penal Code section 192(2) must be of a type which is sufficiently dangerous to physical safety to warrant a manslaughter conviction but that is not the same as saying it must always be life-threatening.

A violation of Penal Code section 273a(2) is an unlawful act not amounting to a felony for the purpose of Penal Code section 192(2), even though such violation would not ordinarily produce great bodily harm or death.

There is no question that in this case placing the infant in the situation earlier described endangered her personal safety and health and was in fact the proximate cause of her death.

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 192 provides in pertinent part:  “Manslaughter is the unlawful killing of a human being without malice.   It is of three kinds:  ․ (b) Involuntary—in the commission of an unlawful act, not amounting to felony;  ․”

2.   Penal Code section 273a provides:  “(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, 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, 4, or 6 years.  (2) Any person who, under circumstances or conditions other than those 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 may be endangered, is guilty of a misdemeanor.”  (Emphasis added.)

3.   Penal Code section 20 provides:  “To constitute crime there must be unity of act and intent.   In every crime or public offense there must exist a union, a joint operation of act and intent, or criminal negligence.”

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.