PEOPLE v. FIGUEROA (1985)

Certified for Partial Publication (Cal.Rules of Court, rule 976.1) ¹

OPINION

Defendant and her boyfriend, Wilder, were charged with multiple violations of Penal Code section 273a, subdivision (1) (willful cruelty or unjustifiable punishment of child, endangering life or health of a child).²  Wilder was also charged with multiple violations of section 289, subdivision (a) (penetration of genital or anal opening with a foreign object).   Defendant pled not guilty.

Defendant's trial was severed from Wilder's.   An amended information was then filed against defendant in which only a single violation of the section was charged.   She was tried by jury and convicted.   Probation was denied and a prison sentence was imposed.   She appeals.

PREFACE TO FACTS

Defendant relies on a prior opinion of this court, People v. Peabody (1975) 46 Cal.App.3d 43, 119 Cal.Rptr. 780 for the proposition that if she did not personally injure her child, the conviction can be sustained only on a criminal negligence basis.   Our response requires a full statement of facts.

THE FACTS

Defendant is the mother of two children, Jonathan and Paulette.   At the time of the alleged incidents, Jonathan was approximately one and one-half years old.   Wilder was living with defendant during this period.   Defendant's sister, Cheryl Cross, and her two children also lived with defendant during part of the time in question.

Over a period of weeks Wilder abused Jonathan, either while purportedly punishing him or as part of providing care for the child.   Defendant's sister and mother both testified to various events.   The sister described the punishment she witnessed, as well as screams from the child which were heard in the house.   Defendant's mother saw bruises and bite marks on the child, as well as a bald spot on his head;  on one occasion, he had two black eyes.   Both the sister and mother were distressed, but withheld action to stop the abuse.

Defendant denied being present during some of the actual punishment, but admitted being present at others.   She also admitted knowing Wilder was in fact punishing the child.   She denied ever abusing the child herself.

Defendant and her sister testified Wilder had individually threatened each of them when they confronted him about his treatment of Jonathan.   Ultimately, defendant and her mother called the police and reported the incidents.

Jonathan was examined by a physician who later testified at trial.   The doctor was of the opinion that the black eyes were not the result of a single blow, contrary to what defendant had told her mother.   He also confirmed bruises, human bite marks, a bruise on the forehead, scratch marks around the child's anus, an abnormally loose anal ring, scab marks in the scrotal area, and a wound on the penis.

The injuries to the rectum were allegedly due to treatment for constipation.   Defendant testified Wilder used her douche bag for this purpose.   However, she also told police Wilder had jokingly alluded to giving Jonathan an enema with the wooden handle of a toilet plunger.

The jurors were presented two versions of defendant's role in the events.   When she was first interviewed by police she was less guarded in discussing her part in the events than she was when she testified.   During the interview she described Wilder as aggressive and brutal toward her child.   The officer paraphrased her responses to questions.   Some examples of those paraphrased answers are provided below.

In response to questioning about the injuries to Jonathan's face, her answer was:  “Whenever David would become angry, he would slap Jonathan.”   When asked about the injury to the penis, she answered:  “[W]henever Jonathan would get an erection ․ David would react by slapping or punching on it or pushing at it until the erection went away.”

When the officer learned from defendant that the events had taken place over a number of weeks, he advised her of her “Miranda rights.”   He then learned that the injuries to the penis were two or three weeks old, as were other injuries.   She said the injuries were not reported because she feared Wilder and thought her children might be taken from her.   The officer was under the impression defendant was describing events which took place in her presence.   He was certain she indicated she was present during the slapping of the child's penis.

Defendant testified most of the abuse took place out of her presence, although she admitted hearing her son's cries.   She agreed that her sister left the apartment “because she could not stand the way [Wilder] was treating [the] children.”   Defendant saw Wilder “jacking Jonathan up by the arm.”   The jurors then heard this cross-examination:

“Q Did you ever observe Mr. Wilder slap Jonathan in the face?

“A Once.

“Q Did you tell Deputy Rutledge that many times Jonathan would play with David and Jonathan would not respond to him, and David would become angry and strike Jonathan in the face?

“A I probably did.   I'm not denying that.

“Q So it wasn't just one time that you saw David Wilder strike him?

“[Defense Counsel]:  Objection;  argumentative.

“THE DEFENDANT:  That I remember right now.”

Defendant explained that much of what she said during her interview was based upon Wilder's explanation to her of things she noticed—things which caused her to question him about events occurring outside her presence.

Defense counsel, in his opening statement, outlined the defense:  Initially defendant did not know this was going on.   When she learned, Wilder threatened her.   He threatened her “on numerous occasions.”   She was a “victim in addition to Jonathan, and the evidence will show that she was in love with this gentleman.   She wanted to stay with him.”

Defendant testified to her fear of what might happen.   She was afraid the children would be taken from her “because of [Wilder's] doings.”   However, she admitted telling the officer that Wilder never struck her and never threatened her with harm.

Although defendant gave other reasons for not reporting the abuse, the cross-examination included this exchange:

“Q Isn't it a fact that you were in love with David Wilder?

“A Yes.

“Q Isn't it a fact that that's the reason that you did not report these injuries?

“A Yes, that was true.”

The prosecutor stressed this theme in his opening argument when stating:  “[T]he important thing is that to her, at this period of time, her affection for David Wilder is what counted and not her fear of David Wilder.”

Defense counsel relied on the defense of duress:

“Polly told her she was in fear of her life, that she was afraid that David was going to kill her, that he had in fact threatened her before.   I submit to you, ladies and gentlemen, and the judge will instruct you, that a person is not guilty of a crime of this nature if she acted under what is called duress.   It means that if you are in fear for you[r] life and you do not do something because of that fear, which otherwise would be criminal, then you are not guilty, and that's exactly the situation that Polly Figueroa was in.”

Counsel closed with the observation that “what she did was not do this willingly.”   This left the prosecutor the final opportunity to contrast the facts:

“I want to point out one other thing.   We are faced with the situation in which this woman made a choice, and what she did was wrong.   She chose to neglect her own child, her own flesh and blood, for the affections of some man;  a man who is preying on this child and preyed on this child for a period of a month, and she knew it was going on.”  (Emphasis added.)

As will be discussed, “to neglect,” in the manner in which it is used above, means purposeful omission in the sense of “to forbear,” rather than “negligence,” as in disregard or the habitual want of regard.  (See Webster's Twentieth Century Dict. of the English Language (1939) p. 1095;  Webster's Third New International Dict. (1961) p. 1513.)   In summary, therefore, the jurors heard that some of the child abuse took place while the mother was present, and the balance was outside her physical presence but within her hearing, or otherwise soon came to her attention.   By her own account, defendant's failure to act resulted either from a considered and resolved desire to keep her male friend from leaving, or fear of him if she intervened.   Negligence on her part, criminal or otherwise, was not mentioned in opening statements, testimony, or closing arguments.   Criminal negligence was before the jury only as part of the instructions.   On this appeal, however, defendant claims negligence is the measure of conduct, with error asserted because the jurors might have found defendant guilty on a willful conduct basis.

I.

ADEQUACY OF JURY INSTRUCTIONS GIVEN. A. The Peabody Requirements.

Defendant first argues the instructions given were insufficient to properly inform the jury about the elements of criminal negligence.   Her reasoning is that under the instructions, the jury could have convicted her even though she did not act with criminal negligence.

Section 273a, subdivision (1), requires the accused's acts or omissions be willful:

“(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, 3 or 4 years.”  (§ 273a, subd. (1).)

Defendant refers us to our decision in People v. Peabody, supra, 46 Cal.App.3d 43, 119 Cal.Rptr. 780.   In Peabody we held, in part, that “the standard of conduct condemned by the statute [§ 273a, subd. (1)] is that of criminal negligence and that the trial court's failure to so instruct the jury compels a reversal.”  (Id., at p. 45, 119 Cal.Rptr. 780.)

“Willfully” was defined in Peabody as follows:

“The word, ‘wilfully,’ when applied to the intent with which an act is done, is defined in Penal Code section 7, subdivision 1 as simply a purpose or willingness to commit the act and does not require any intent to injure another.   However, Penal Code section 20 states that in every crime there must exist a union or joint operation of act, intent, or criminal negligence.   Section 20 makes criminal intent or negligence an invariable element of every crime unless excluded from the statutory definition either expressly or by necessary implication.  (People v. Stuart, 47 Cal.2d 167, 171 [302 P.2d 5, 55 A.L.R.2d 705].)   Moreover, Penal Code section 26, subdivision six lists among the persons incapable of committing crimes those ‘who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.’ ”   (Peabody, supra, 46 Cal.App.3d at p. 46, fn. omitted, 119 Cal.Rptr. 780.)

The Peabody trial court instructed the jury in the words of the statute.   However, no instruction was given on the appropriate standard of conduct proscribed by the statute.  “Willfully” was not defined.   There were no instructions on principles of negligence, criminal or otherwise.   Nothing was mentioned concerning mere inattention or mistake in judgment.

The question presented, therefore, is whether the trial court in this case committed similar error.   As in Peabody, the trial court instructed in the words of the statute.   Unlike Peabody, “willfully” was defined in this case:

“The word ‘willfully’ as used in this instruction implies simply a purpose or willingness to make the act or to make the omission in question.   The word willfully does not require in its meaning any intent to violate the law or to injure another, or to acquire any advantage.”

Again, unlike Peabody, instructions on the principles of negligence were given by the court below:

“The form of culpable negligence required to convict the defendant of violation of Section 273a(1) exists when a man of ordinary prudence would foresee that the act he commits would cause a high degree of risk of death or great bodily injury to a child and he acts with indifference to such risk.”

Also given were the following instructions on criminal intent:

“In order for the defendant to be found guilty of the offense alleged in the Information, a violation of Section 273a(1) of the Penal Code, there must exist a union or joint operation of act or conduct and either, one, general criminal intent or, two, culpable negligence of a nature required under Section 372a(1) [sic ].

“To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law.   When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.”

We conclude that under the facts of our case the above instructions satisfied the concerns of this court as expressed in Peabody.

“Manifestly, the standard of conduct proscribed by a criminal statute cannot be left to an ad hoc ‘common sense’ interpretation as each case arises;  the standard must be fixed and certain to the end that a trier of fact may objectively evaluate the defendant's conduct in light of that condemned by the statute.   For this reason, we hold that Penal Code section 273a, subdivision (1) requires proof of criminal negligence which means that the defendant's 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 an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life.  (People v. Penny [ (1955) ], supra, 44 Cal.2d 861, 879 [285 P.2d 926];  People v. Rodriguez [(1960) ], supra, 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863];  cf. People v. Beaugez [(1965) ] supra, 232 Cal.App.2d 650, 657–658 [43 Cal.Rptr. 28];  1 Witkin, Cal.Crimes, § 65, pp. 69–70.)”  (Peabody, supra, 46 Cal.App.3d at pp. 48–49, 119 Cal.Rptr. 780.)

Our foregoing statement in Peabody should not be isolated from the facts before the Peabody court.   The mother testified she “ ‘had suspicions, but I just thought it was my imagination, so I just didn't think anything of it.’ ”  (Id., at p. 46, 119 Cal.Rptr. 780.)   Therefore, in assessing the alleged criminal responsibility, the jury was concerned only with that part of section 273a, subdivision (1), which relates to child endangerment caused by the parents' failure to identify the situation and do something about it.   When treated realistically, the conduct is not that of intent, but rather of negligent omission to do something the surrounding circumstances would demand of a reasonable person.  (See Webster's Twentieth Century Dict. of the English Language, supra, at p. 1095;  Webster's Third New International Dict., supra, at p. 1513.)

In Peabody, at page 48, 119 Cal.Rptr. 780, we relied on language in People v. Beaugez (1965) 232 Cal.App.2d 650, 657–658, 43 Cal.Rptr. 28, and its use of a “rule of reason.”   The Beaugez court limited the passive form of child endangerment to situations in which the danger to the child appeared “reasonably foreseeable.”   We noted the Beaugez court's use of this negligence concept.   For the first time in California, Peabody acknowledged that negligence is a part of the section.   We employed distinctions found in homicide cases.   Under the facts before us we held that instructions must be given on criminal negligence, thus excluding activity involving “simple negligence.”

The Supreme Court has recently noted several types of conduct prohibited by section 273a, subdivision (1), and its numerous clauses.   In People v. Smith (1984) 35 Cal.3d 798, 809, 201 Cal.Rptr. 311, 678 P.2d 886, footnote 7, the court observed:  “Because of this factual distinction [presented only with personal abuse of the assaultive kind] 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.”

In People v. Shockley (1978) 79 Cal.App.3d 669, 145 Cal.Rptr. 200, the death followed longstanding neglect which caused malnutrition and dehydration.   The court stated that child endangerment “may be based on indifference or neglect or simply failure to take time to properly look after the child.”   (Id., at p. 677, 145 Cal.Rptr. 200.)   Although the Shockley description of the activity appears to conflict with Peabody, the Smith characterization of the Shockley facts as being that of “extreme neglect” makes the Peabody definition of criminal negligence apply.   With appropriate modification the new CALJIC instruction, No. 4.45.1, would therefore be applicable.  (CALJIC No. 4.45.1 (4th ed. 1984 pocket pt.) p. 54.)

We return to the kinds of conduct which are prohibited by section 273a, subdivision (1), and elaborate upon them.   Several amendments have been made to its language since its enactment in 1905.   In People v. Beaugez, supra, 232 Cal.App.2d at p. 656, 43 Cal.Rptr. 28, the court found section 273a contained three parts:

“Penal Code section 273a reaches three types of offenders in their conduct relating to children:  (1) the person who wilfully inflicts unjustifiable physical pain or mental suffering upon a child or causes or permits him to suffer;  (2) the custodian of a child who causes or permits the child's life or limb to be endangered or his health to be injured, or (3) the person who wilfully causes or permits a child to be placed in such a position that its life or limb ‘may be endangered or its health likely to be injured.’ ”   (Emphasis in original.)

In 1965 the section was revised to provide both felony and misdemeanor responsibility, the former now depending upon “circumstances or conditions likely to produce great bodily harm or death.”   Also, “willfully” was added to the second kind of activity listed in Beaugez.   From 1905 until 1965 the mental aspect of the custodian's activity had not been statutorily defined.   By adding “willfully” to this part of the section, the Legislature eliminated any doubt concerning the custodian's responsibility.

Since 1872 the word “willfully” has been defined as follows:  “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to.   It does not require any intent to violate law, or to injure another, or to acquire any advantage․”  (§ 7, subd. 1.)   The Penal Code requires this meaning be given to the word unless a different meaning is otherwise apparent from the context in which it is used.

Despite the fact section 273a is commonly referred to as “child endangerment,” the section is also directed to acts causing or permitting present effects.   It specifically prohibits willfully causing or permitting a child to suffer or be injured, as well as willfully causing or permitting the child to be in “such situation that its person or health is endangered․”

 In most simplistic terms, the section proscribes activity and inactivity which may be of immediate effect or, because of continuous conduct, may become of “endangerment” proportions.   The conduct may be of the personal, do-it-yourself type.   This personal conduct may be the immediate, willful kind exhibited in People v. Atkins (1975) 53 Cal.App.3d 348, 125 Cal.Rptr. 855.   It may also be the less immediate, personal variety called extreme neglect which endangers the child.  (People v. Shockley, supra, 79 Cal.App.3d 669, 145 Cal.Rptr. 200.)   The foregoing, personally inflicted activity is criminal either when willful or when the result of criminal negligence.

 Alternatively, there is the situation in which the direct actor is another person, and the defendant is alleged to have allowed the abuse to happen.   Again, the other person's conduct may be immediately effective, or be of the continuous endangerment variety.   The defendant's failure to intervene may be purposeful, as described in section 7, or due to criminal negligence.

The first count of the amended information charged as follows:

“That said POLLY ELAINE FIGUEROA, on or about and between June 1, 1982 and September 14, 1982, at and in said County of Kern, State of California, did willfully, and unlawfully, under circumstances and conditions likely to produce great bodily harm and death, cause and permit the person and health of Jonathan Baker, age 1 to be injured and said victim to be placed in such a situation that said victim's person and health was endangered, said defendant having the care and custody of said victim in violation of Section 273a(1) of the Penal Code a felony.”

Therefore, defendant was on notice that she was charged with willfully permitting her child to be injured, as well as willfully allowing him to be endangered.   Under this charge she could be convicted on proof of willfully permitting specific incidents to occur or, in the alternative, of permitting the child's person and health to be endangered.   She was not charged or tried on an aiding and abetting theory.   The charge involved requires no proof of aiding or encouragement of the party directly inflicting the abuse.

Section 273a, subdivision (1), has been discussed in death cases, bringing into play distinctions between murder and manslaughter.   Careful examination of the mental element was required in such cases.   The key, of course, is the difference between purposeful action and culpable negligence.

“ ‘A charge of manslaughter may be predicated upon a failure to act as well as upon an act.   Willful failure of a person to perform a legal duty, whereby the death of another is caused, is murder, but if the omission was not willful, but was the result of gross or culpable negligence, it is involuntary manslaughter.’ ”  (People v. Montecino (1944) 66 Cal.App.2d 85, 101, 152 P.2d 5.)

In Peabody we relied on People v. Penny (1955) 44 Cal.2d 861, 285 P.2d 926, which made it clear that criminal negligence requires gross or culpable conduct.   Cited by the Penny court is People v. Sidwell (1915) 29 Cal.App. 12, 154 P. 290, and a comment in that opinion at pages 17–18 which distinguishes willful and negligent conduct:  “In other words, the crime is that of involuntary manslaughter, whether the killing be committed in the execution of an unlawful act, etc., or in the execution of a lawful act, etc., or where death, not willfully or intentionally produced, is, nevertheless, caused by the gross or culpable negligence of the defendant․”  (Emphasis added.)

This is consistent with the Peabody interpretation of section 20:  “Section 20 makes criminal intent or negligence an invariable element of every crime unless excluded from the statutory definition either expressly or by necessary implication.”  (People v. Peabody, supra, 46 Cal.App.3d at p. 46, 119 Cal.Rptr. 780, emphasis added.)

“A charge of manslaughter may be predicated on a failure to act as well as on an act.   While the willful failure of a person to perform a legal duty, whereby the death of another was caused, is murder, ․ if the omission was not willful, but was the result of gross or culpable negligence, it is involuntary manslaughter.”  (40 C.J.S., Homicide, § 63, p. 929, fns. omitted.)

Professor Perkins carefully distinguishes between forbearances and omissions:

“Not every exertion of the will results in positive action.   The result may be quite the reverse.   One who stands his ground in the presence of great danger may remain motionless at the expense of greater exertion of the will than is involved in the hasty flight of another.   But this important distinction is to be noted:  whereas every exertion of the will resulting in positive action is an act, an exertion of the will resulting in inaction may or may not be an act.   Furthermore, inaction may be an act even if it results, not from an exertion of the will, but from a failure of the will to exert itself.   In other words, inaction may (or may not) be an act whether it results from a determination not to act or from forgetfulness or inattention.   A negative act which is consequent upon volition is a ‘forbearance’;  one which results, not from an exertion of the will, but from an absence of the will in the form of forgetfulness or inattention, is an ‘omission.’   Stated differently:

“A ‘forbearance’ is an intentional negative act;  whereas, an ‘omission’ is an unintentional negative act.   The latter word is not infrequently employed to serve the purpose of both, but such usage is inconvenient and will not be adopted here.”  (Perkins on Criminal Law (2d ed. 1969) Imputability, § 4, Negative Acts, p. 592, fns. omitted.)

Section 7, quoted previously, clearly anticipates crimes resulting from willful omissions.   In Beaugez the parents were charged with the willful creation of a situation in which the child was endangered.   The court construed “willfully” to mean purposefully and with knowledge of the consequences.   It was not concerned with negligent conduct.   Instead, dealing with intent, it found the prohibition concerned was one which condemned “the intentional placing of a child, or permitting him to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable.”  (People v. Beaugez, supra, 232 Cal.App.2d at p. 658, 43 Cal.Rptr. 28.)   In our case the charge was both the willful causing or permitting the child to suffer, etc., and the willful endangerment.

As of 1975, many state child abuse statutes were worded, as in the case of section 273a, subdivision (1), in terms of willfullness.   In State v. Lucero (1975) 87 N.M. 242, 531 P.2d 1215, there is discussion of a New Mexico statute which used the typical words and added “or negligently,” to the dissatisfaction of a dissenting justice who thought the addition of negligence made the statute unconstitutional.   The majority upheld the statute as a form of strict liability.   Our courts have not gone that far:

“The word ‘wilfully’ as used in criminal statutes implies a purpose or willingness to commit the act (Pen.Code, § 7, subd. 1), and although it does not require an evil intent, it implies that the person knows what he is doing intends to do what he is doing and is a free agent.  [Citations.]  Subdivision (a) [of Labor Code, section 216], construed together with the Penal Code definition of the word ‘wilful,’ makes it a crime for an employer having the ability to pay, knowingly and intentionally to refuse to pay wages which he knows are due.”  (In re Trombley (1948) 31 Cal.2d 801, 807–808, 193 P.2d 734.)

We interpret similar language in a like fashion.

In People v. Burden (1977) 72 Cal.App.3d 603, 140 Cal.Rptr. 282, the court distinguished at some length willful conduct from negligence leading to the death of a child.   The defendant claimed that he was prevented from caring for his baby by his wife's objections to any interference.   A second degree murder conviction was affirmed because of proof which exceeded the level of “ ‘aggravated, culpable, gross, or reckless' neglect․”  The conduct was described as “wanton.”  (Id., at p. 615, 140 Cal.Rptr. 282.)   In its analysis, Bishop was quoted:  “ ‘ “For example, if from an infant of tender years the person under obligation to provide for it wilfully withholds needful food or any other needful thing, though not with intent to kill, and by reason thereof the child dies, he commits murder.”   2 Bish.New Cr.Law, § 686.’ ”   (Id., at p. 617, 140 Cal.Rptr. 282.)   Whether in willfully withholding food, as in Burden, or in willfully permitting a boyfriend to injure and otherwise abuse the child, as in this case, similar purposeful conduct is involved.

We therefore conclude the jury was adequately instructed that the criminal acts could be accomplished by either willful conduct of the traditional kind, or by criminal negligence.   The combination of instructions informed the jury that “general criminal intent” is satisfied if the person “intentionally does that which the law declares to be a crime.”   A part of defendant's conduct was of this type.

The distinction between intentional and negligent conduct was noted when the jurors were instructed that to convict the defendant “there must exist a union or joint operation of act or conduct and either (1) general criminal intent or (2) culpable negligence of a nature required under Section 273a(1).”   These terms were properly defined.   As we commented in Peabody, section 20 speaks in terms of criminal intent or negligence.³

 B. The “Either ․ Or” Problem of the Instruction.

 Assuming the jurors could have been confused by the “either ․ or” portion of the instruction on intentional and negligent conduct, such potential confusion was of no consequence.   The defense was duress.   The instruction informs the jurors that the defendant is excused from criminal responsibility when, acting under threats and menaces, he engages “in conduct, otherwise criminal․”  (See CALJIC No. 4.40 (4th ed. 1979) p. 140.)   This confession and avoidance plea submits the acts were as charged but were done only out of fear.   If the jury rejects this defense, it is left with no contested issue of criminal intent.   Instructional error is thus minimized to the point of harmless error.  (People v. Caldwell (1984) 36 Cal.3d 210, 224, 203 Cal.Rptr. 433, 681 P.2d 274.)

Although defendant tried to minimize her knowledge of what was taking place about her, she relied on duress to excuse what was otherwise criminal conduct.   During his opening statement defense counsel made it clear defendant had known enough to be subjected to threats, and had such knowledge for some time.   Counsel stated, “initially she did not know this was going on, and when she found out, then he threatened her.”   The long time span was made clear when he said, “Mr. Wilder had in fact threatened her on numerous occasions.”   That the threats were occasioned by her knowledge of his misconduct is clear.   Defendant admitted this when she testified:  “He said that if I ever turned him in, he would kill me or come back to just do me harm.”   The jurors rejected this defense, perhaps because defendant admitted she told Deputy Rutledge she had not been threatened by Wilder.   However, the duress posture was maintained even in closing argument.   It is also significant that the jurors rejected the misdemeanor level of the crime.   They found the conduct was of serious proportions.   As such, it was of the kind defendant could not have misunderstood.

 C. Sua Sponte Duty to Instruct on Mistake and Inadvertence.

 Defendant also asserts the trial court failed to sua sponte instruct the jury concerning mistake and inadvertence.   No California precedent so holds.   In People v. Acosta (1955) 45 Cal.2d 538, 543–544, 290 P.2d 1, the court held it was error to refuse such an instruction when the defendant contended he “took” a vehicle by accident rather than on purpose.   The court declined to rule whether the court had a duty on its own motion to give the instruction.  (Id., at p. 544, 290 P.2d 1.)

Here, defendant did not rely on the defense of mistake or accident.   A position was taken inconsistent with mistake, misfortune or accident:  Defendant saw much of what was happening to her son;  she understood its significance, but withheld complaining about it because of fear for her own safety and that of her children, or out of fear her children would be taken away from her.   This duress defense was the subject of proper instruction.   If disbelieved, the jurors' alternative was to find purposeful forbearance which served defendant's own ends, not accident.

Because the defense did not rest on mistake or accident, and there was insufficient evidence to support that alternative even if not asserted by the defendant, there was no instructional error requiring reversal.  (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.)

II.

SUGGESTED INSTRUCTIONS.

We have approved the instructions given in the circumstances before the trial court.   However, juror confusion would be more easily avoided if the two theories of criminal responsibility are better contrasted by separating the instructions into one series on purposeful conduct and one series on culpable negligence.   A legal reality would thereby be recognized:  The “willfullness” requirement of the statute is satisfied by its equivalent in law, culpable negligence.   Proof of criminal negligence is a full substitute for proof of purposeful conduct.

A similar problem was discussed in People v. Dillon (1983) 34 Cal.3d 441, 472–477, 194 Cal.Rptr. 390, 668 P.2d 697.   Appellate courts had variously declared how proof of a felony murder satisfied the need to prove malice as an element of murder.   Because proof of felony murder is an alternative to proving malice, malice becomes irrelevant.   Similarly, in a section 273a, subdivision (1), prosecution based on the theory of criminal negligence, “willfullness” is redefined in terms of grossly unreasonable nonpurposeful conduct.

Jury instructions which segregate theories of criminal responsibility are less likely to be misunderstood than combinations such as the “either ․ or” type used in this case.   We will illustrate using current standard California jury instructions.

 A. Willful Conduct Instructions.

If the prosecution theory is purposeful conduct on the part of the person inflicting the injury or creating the conditions, or is based upon the party's willful forbearance of action to prevent injury or endangerment, an introductory instruction should be given which states the charge.   Appropriate special instructions then follow:

Defendant is charged in [Count _ of] the information, with the commission of the crime of violation of section 273a, subdivision (1), of the Penal Code.

(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 guilty of the crime of violation of section 273a, subdivision (1), of the Penal Code.

“The word ‘willfully’, when applied to the intent with which an act is done or omitted and as used in my instructions, implies simply a purpose or willingness to commit the act or to make the omission in question.   The word does not require in its meaning any intent to violate law, or to injure another, or to acquire any advantage.”  (CALJIC No. 1.20 (4th ed. 1979) p. 10.)

“In the crime[s] charged in Count[s] _, _, and _ of the information, [namely,] _, _, and _, there must exist a union or joint operation of act or conduct and general criminal intent.   To constitute general criminal intent it is not necessary that there should exist an intent to violate the law.   When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.”  (CALJIC No. 3.30 (4th ed. 1979) p. 104.)

See our suggestion below on the knowledge aspect of endangerment.

 B. Culpable Negligence Instructions.

If the theory is culpable negligence, the above introductory instruction stating the charge should be varied to replace the word “willfully” with the words “as a result of culpable negligence as I will define it.”   Then, instead of defining “willfully,” through use of CALJIC No. 1.20, a modified CALJIC No. 4.45.1, defining culpable negligence, would be given.

“The term ‘culpable negligence’ means conduct which is more than ordinary negligence.   Mere inattention or mistake in judgment is not culpable negligence.

“Culpable negligence means conduct which is aggravated or reckless.   It must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for another's life.   It requires knowledge, actual or imputed, that the act tends to endanger another's life [or present a risk of great bodily harm].   Whether or not an act constitutes culpable negligence must be determined from the act itself, not from the consequences of the act.”  (CALJIC No. 4.45.1 (4th ed. 1984 pocket pt.) p. 54.)

We have modified the form instruction to more precisely fit a section 273a, subdivision (1) felony prosecution, adding in the brackets “or risk great bodily harm.”   It is not necessary for us to take a position whether culpable negligence would apply in the misdemeanor aspect of section 273a, and if so, whether the instruction should be modified in reference to the nature of the risk.

The “concurrence” instruction should be a slight modification of CALJIC No. 3.32, substituting “culpable negligence” in place of “criminal negligence,” as follows:  “In the commission of this crime there must exist a union or joint operation of act or conduct and culpable negligence.”   Also, see the “endangerment” instruction discussed shortly.

When appropriate, the court should give CALJIC No. 4.45, which covers accident and misfortune.  (See CALJIC No. 4.45 (4th ed. 1979) p. 143.)   If appropriate, this instruction should be given irrespective of whether the theory is purposeful conduct, culpable negligence, or both.

 C. Willful Conduct and Culpable Negligence Instructions.

When faced with facts supporting both theories of criminal conduct, the separate instruction method is accomplished by a variation in the introductory instruction and a brief comment noting the transition from the first to the second theory.   Before stating the charge the court should state, in substance:

“The People contend the defendant has violated Section 273a, subdivision (1), of the Penal Code because of two kinds of criminal conduct which I will describe in separate, but to some extent similar instructions.   In general, the distinction between the two types of conduct is that one is described as ‘willful’ conduct and the other is described as ‘culpable negligence.’   My first instructions concern ‘willful’ conduct.”

After giving the appropriate instructions on willful conduct, the transition from instructions on that theory to the theory of culpable negligence should be made:  “I will now turn to the kind of conduct called ‘culpable negligence.’ ”   In this fashion, the instructions avoid any possible confusion concerning the relationship of willful conduct and culpable negligence, and any uncertainty arising from a single instruction on concurrence.

A closing transition from any of the group of special instructions to the general instructions should also be given.   It is to the effect that:  “I now return to the general instructions.”

 D. Knowledge Instruction.

The role of knowledge in the endangerment kind of criminal conduct has been variously stated.   In People v. Penny, supra, 44 Cal.2d 861, 879–880, 285 P.2d 926, cited by Peabody for its definition of culpable negligence, the court referred to the gross nature of the conduct and its relationship to knowledge.   Knowledge of the endangering quality of the acts could be actual, or imputed.   A defendant may successfully disclaim actual knowledge (the subjective awareness) yet be held to what a reasonable person would realize (the objective standard) through use of imputed knowledge.

This dual approach to knowledge is a familiar one.   In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, a vehicular manslaughter case, the court noted the meaning of malice differs from that of gross negligence.   After defining the words the court stated:

“Though these definitions bear a general similarity, they are not identical.   Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.”  (Id., at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.)

Implied malice depends upon a finding that the defendant “actually appreciated the risk involved, i.e., a subjective standard.”  (Id., at p. 297, 179 Cal.Rptr. 43, 637 P.2d 279.)   This kind of knowledge supports a second degree murder charge and distinguishes the case from one involving gross negligence which depends only on an objective standard of conduct.  (Id., at pp. 296–298, 179 Cal.Rptr. 43, 637 P.2d 279.)

The Legislature, in a 1983 amendment to section 192, specifically approved the Watson distinction.   The treatment of knowledge by use of the objective test approved in Watson is in terms of presumptive indifference:  “[G]ross negligence ․ has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.”   (Id., at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis in original.)

Returning to the requirements of section 273a, subdivision (1), it is clear that if culpable negligence is the theory, knowledge may be imputed.   When we turn to the side of the statute covering willful conduct, we find the matter more complex.   The definition of “willfully” in section 7 is simply a purpose or willingness to commit the act, or make the omission.   However, the standard instruction on general criminal intent is more specific, requiring that the jury conclude the defendant “intentionally” did the act declared to be a crime.

Because the statute not only covers present effects (suffering and injury to person and health), but also covers the status or condition of being endangered, the question of knowledge is a two-part one.   If the defendant is directly involved in causing or permitting present suffering or injury, either through personal action or forbearance, knowledge of the acts is implicit in the instruction that the “causing or permitting” must be intended.   However, if the theory is willful endangerment caused by present intentional acts or forbearance, a condition, actual or threatened, must be proven:  There must be an endangered child.

 The culpable negligence instruction is in terms of endangerment.   However, when we have alleged purposeful conduct, the general criminal intent instruction may appear not to go beyond acts to consider potential effect.   Numerous kinds of conduct may endanger a child.   Such acts depend upon variations of kind, quantity, severity, duration and the child's resistance.   The law looks to the potential of the acts rather than their actual effect.   Endangerment requires the jury to reach a conclusion that something of a serious nature was likely to occur.

 In these circumstances peculiar to child abuse crimes, the endangerment concept necessarily requires the jury to evaluate the defendant's knowledge at the time of the conduct.   In many cases the defendant's role is a passive one.   The defendant's knowledge of the character of the events taking place is determinative of guilt.   Even though defendant's acts or forbearance are willful, the court should instruct the jury concerning the kind of knowledge of the endangerment a defendant must have.

Although this point has been raised by the defendant, the practical effect of failing to give a knowledge instruction may be more detrimental to the prosecution than defense.   The culpable negligence instruction informs the jurors that imputed knowledge is sufficient.   Absent that instruction when purposeful conduct is the theory, the jurors may assume the defendant must have actual knowledge of the imperiling nature of the conduct.

Section 273a, subdivision (1), provides for the same punishment whether the conduct is purposeful or negligent.   In both instances the jury must find the endangerment was under conditions likely to produce great bodily harm or death.   Because lack of actual knowledge is no excuse in the case of culpable negligence, it is even less excusable if intentional conduct is proved.

 In this case, when the jury instructions on the intentional aspect of defendant's conduct are read together they amount to the following:  The defendant may be convicted of violating section 273a, subdivision (1), if the jury finds that she intentionally permitted her child to be endangered under conditions likely to produce great bodily harm or death.   “Endangered” is a word of common understanding, as in the case of “great bodily injury,” and requires no sua sponte instruction giving it a technical meaning.  (People v. Anderson (1966) 64 Cal.2d 633, 639–640, 51 Cal.Rptr. 238, 414 P.2d 366;  People v. Roberts (1981) 114 Cal.App.3d 960, 963–966, 170 Cal.Rptr. 872.)   These instructions were adequate.

Whether the prosecution is based on intentional or negligent conduct, or both, in the future a knowledge instruction should be given in an endangerment case, such as:

“In this case, the crime of placing the child in such situation that its person or health is endangered also requires that the defendant have actual or imputed knowledge of the endangerment.   Knowledge is imputed if a reasonable person in defendant's position would have been aware of the risk.   In that case, defendant is presumed to have had such an awareness.”

This objective test is taken from People v. Watson, supra, 30 Cal.3d at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.

We are well aware that the two subdivisions of section 273a have become the basis for numerous prosecutions.   The section becomes of greater consequence if the victim has died because of the conduct.   For 60 years violation of section 273a was a misdemeanor.   Since the 1965 division of the section into two parts its linguistic ambiguities have become of greater consequence.   The section has barely survived constitutional challenge.   Its potpourri nature adds to the need for legislative revision.

III.*

THE PROSECUTOR'S QUESTIONS ABOUT POSSIBLE SEXUAL ABUSE.

IV.*REASONS FOR DENYING PROBATION.

The judgment is affirmed.   The matter is ordered remanded to the trial court with directions to resentence defendant in accordance with the views expressed above.

I concur in much of the carefully written analysis of the meaning and requirements of Penal Code section 273a, subdivision (1) found in the majority opinion, and I concur in the remand for resentencing.   I disagree, however, with the majority's failure to recognize the necessity for a sua sponte instruction on “knowledge” in every case involving a willful or negligent act or omission toward a child under section 273a, subdivision (1).

In People v. Peabody (1975) 46 Cal.App.3d 43, 119 Cal.Rptr. 780 (hg. den.), this court held that juries must be instructed on criminal negligence in Penal Code section 273a, subdivision (1) cases.   This holding was based on the conviction that violations of section 273a, subdivision (1) were too serious to be treated as mere “public welfare offenses” punishable without regard for the state of mind of the defendant (People v. Peabody, supra, 46 Cal.App.3d at pp. 46–47, fn. 1, 119 Cal.Rptr. 780) together with general principles enunciated in Penal Code sections 20 and 26 which make criminal intent or negligence an invariable element in every crime.  (Id., at p. 46, 119 Cal.Rptr. 780.)

When we held in Peabody, supra, that violations of section 273a, subdivision (1) were not public welfare offenses, we disagreed with People v. Beaugez (1965) 232 Cal.App.2d 650, 658, 43 Cal.Rptr. 28, footnote 3, which indicates that they are.   However, we accepted and relied on the Beaugez court's analysis of the statute itself.   In response to a constitutional challenge to the statute on “vagueness” grounds, the Beaugez court construed “ ‘willfully’ as used in Penal Code section 273a to mean ‘purposeful’ or ‘with knowledge of consequences.’   And by applying the ‘rule of reason’ to the whole provision ․ construe[d] its meaning as a whole to condemn the intentional placing of a child, or permitting him to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable.”  (People v. Beaugez, supra, 232 Cal.App.2d at p. 658, fn. omitted, 43 Cal.Rptr. 28.)

This construction of the statute makes the reasonable foreseeability of harm to the child, or the known, unacceptable risk of harm to the child, an element of the offense.   It is only by the inclusion of this element that the statute avoids constitutional challenge for vagueness and prevents application of this statute to intentionally letting a child go swimming or cross a busy street.   These are not crimes without knowledge that a child cannot swim or does not know enough to wait for cars to pass.

Appellant claims the instructions in this case were inadequate because they did not force the jury to decide “whether a person of ordinary prudence would have foreseen that the failure to immediately report Wilder to the police would cause a high degree of risk of death or great bodily injury to Jonathan․”  This is not a claim that “negligence is the only possible theory,” but a claim that the jury was not adequately instructed on the need to find that appellant was or should have been aware of the risks to her child.   This awareness element is not captured in the “general intent” prong of the instructions given in this case.

The majority opinion distinguishes “willful forebearance” from “negligent omissions” using Perkin's criminal law analysis.   This distinction seems valid as to Penal Code section 273a, subdivision (1), but it was not reflected in the jury instructions that were given.   The prosecutor argued the case in terms of appellant's “neglect” as well as her purposeful forebearance in allowing the child to be injured by Wilder.   The majority assumes that the jury could understand and apply the distinction between willful forebearance and negligence without any relevant instruction on the point and concludes that “[c]riminal negligence was before the jury only as part of the instructions.”

Appellant did not personally injure the child.   She refrained from reporting or restraining the actions of Mr. Wilder.   As this case went to the jury, it was either a negligent endangerment or a willfully permitting harm type of case, or both.   The instructions, the arguments and the evidence could support a verdict on either theory.   Under either of these theories, appellant's state of mind and her actual or imputed knowledge of danger to the child are essential elements of the crime.   Thus, a “suggested” instruction on knowledge will not suffice;  the instruction is mandated by the facts and by this court's opinion in People v. Peabody, supra, 46 Cal.App.3d 43, 119 Cal.Rptr. 780.

Nevertheless, it would appear that on this record appellant's duress defense impliedly conceded the knowledge issue, thereby taking the issue from the jury's consideration and rendering the instructional error harmless (see People v. Caldwell (1984) 36 Cal.3d 210, 224, 203 Cal.Rptr. 433, 681 P.2d 274;  see also People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913;  Connecticut v. Johnson (1983) 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823).   Accordingly, I join in the affirmance of the judgment.

FOOTNOTES

1.   Parts III and IV are not published, as they do not meet the standard of publication contained in rule 976(b), California Rules of Court.

2.   All statutory references are to the Penal Code unless otherwise indicated.

3.   The instructions were on two theories of criminal responsibility and depended upon two kinds of conduct which arose over a period of about six weeks.   Although there were several acts of abuse, they constituted a single course of conduct.   One particular act was not the key to either the prosecution or the defense.   The defense was focused on duress.If there is a course of conduct, CALJIC No. 17.01 does not apply to require juror unanimity on particular acts.  (People v. Ewing (1977) 72 Cal.App.3d 714, 140 Cal.Rptr. 299;  see generally CALJIC No. 17.01 (4th ed. 1979) p. 225.)   Nor is that instruction required when there is but one offense prosecuted under different theories.  (People v. Milan (1973) 9 Cal.3d 185, 194–195, 107 Cal.Rptr. 68, 507 P.2d 956;  People v. Bedolla (1979) 94 Cal.App.3d 1, 9–10, 156 Cal.Rptr. 171.)

FOOTNOTE.   See footnote 1, ante.