A jury found defendant not guilty of the assault with a deadly weapon of his wife (Pen. Code, § 245, subd. (a)(1))
The trial court sentenced defendant to state prison for the felony child abuse and recidivist enhancement. It later imposed a concurrent term for the assault of his wife and a stayed concurrent term for the assault of his son. It also entered a no-visitation order with respect to defendant's son under the authority of section 1202.05.
In the published portion of this opinion, we reject defendant's contentions concerning the sufficiency of the evidence of felony child abuse. We agree that the trial court erred by giving the jury instructions that allowed them to consider self-defense only in connection with the assault count and not in connection with the child abuse count. We also agree that the court erred in failing to instruct that the parental discipline defense applied to the assault count. However, these instructional errors were harmless.
In the unpublished portion of this opinion, we address and find harmless the court's failure to instruct that direct child abuse requires general criminal intent, and we reject defendant's contention concerning the need for a unanimity instruction on the child abuse count. We agree, and the People appropriately concede, that the court erred in issuing the no-visitation order. Finally, we correct a clerical error we found in the abstract of judgment.
As modified, we affirm the judgment.
Defendant had been separated from his wife for five years. He had custody of their 14-year-old son, with whom he had an up-and-down relationship. The wife had moved in with defendant a couple of weeks before the day of the incident out of which the charges arose. She wanted to help take care of the children because defendant had a hernia. There had been previous domestic violence between defendant and his wife, which resulted in defendant's 2004 felony conviction for spousal abuse. For "a few weeks" before the incident, defendant and his son were angry at each other, and had barely spoken.
On the morning of the incident, defendant's son and the wife were sitting on the sofa watching television when defendant entered the room and asked what had happened to his Honda 90 motorcycle and who had broken the mirror on his truck. Defendant's son denied knowing anything about the
Defendant returned shortly afterward and began questioning his wife in a raised voice. Defendant's son thought his mom was "a little freaked out" because of defendant's tone of voice. It seemed to the son that defendant was trying to start a fight with the wife; he said something about wanting to throw her out of the house. Defendant's eight-year-old daughter was running around the room playing at the time.
Defendant walked over to the bookshelves and picked up a river rock, which he began to toss up and down. He threatened to "hit somebody" with the rock when he did not get any answers to his questions about the motorcycle and truck.
Defendant walked close to the wife, at which point the son got up to intercede in case anything happened. Defendant got angrier and appeared to the son to be in a "pissed off" mood. He threw the rock at the son's cell phone, which was lying on the couch. Both defendant and the son went to grab the phone, wrestling each other on the couch for it. The two were "basically on top of each other." The son heard the phone cracking from defendant's grip.
At some point during the wrestling over the phone, the son was on top of defendant. Defendant told his son, "[l]et me stand up and I'll give you the cell phone back." The son agreed and got off defendant. The son demanded his cell phone back and admitted breaking the mirror on the truck. Defendant then pushed the son back onto the sofa and threw the phone to the ground, smashing it.
The wife, who was hustling their daughter out of the house to prevent her from witnessing the scuffle, had a cordless phone in hand and said she was going to call the police. Defendant chased after his wife. As he pursued, defendant swore at her, calling her a bitch and "a whole bunch of bad words." Defendant's wife called 911 as she fled.
The son ran outside after them. The son was angry about the cell phone, which cost $700, and he wanted to fight defendant. However, he was primarily concerned about preventing defendant from hurting his mother. He explained, "I really didn't care about the phone once he was chasing my mom." "He was going to go for my mom, and I was tired of seeing that happen."
The son caught defendant near the outside steps. He could not jump on defendant's back because defendant was "too tall." Instead, the son pushed
After his son fell to the ground, defendant got on top of his son and slapped him on the sides of his head with open palms. As he struck his son, defendant said something like, "I don't want to do this." The son was unsure how many times defendant slapped him, but estimated it may have been more than five times. The son called the slaps "bitch slap[s]" and testified that the slaps did not hurt.
After slapping his son, defendant got up and resumed the pursuit of his wife, who was on the phone with 911. Defendant threw one or two pieces of asphalt at his wife during the chase. Defendant fell down and the wife made it to the neighbor's yard. Defendant then broke off his pursuit, went back inside the house to put on a shirt, and drove off. At some point before leaving, defendant told his wife, "You're going to regret that call, bitch."
The son had dried mud on the back of his shirt when later photographed. He sustained "cuts" and a "gash" on his mid and lower back. Photographic exhibits introduced into evidence depicted patches of discoloration that had the appearance of superficial abrasions in the area of these injuries.
The defense rested without calling any witnesses.
The trial court instructed the jury on the offense of simple assault as a lesser included offense to the felony assault counts on defendant's wife (assault with a deadly weapon) and son (assault with force likely to cause great bodily injury). Additionally, the court instructed the jury on the offense of simple child abuse on count 3, a lesser included offense of child abuse under circumstances and conditions likely to produce great bodily harm, a felony.
Defendant contends that the evidence was insufficient to establish that any injury was inflicted under circumstances and conditions likely to produce great bodily harm. "`"The standard of review is well settled: On appeal, we
Felony child abuse is defined in section 273a, subdivision (a), which provides in pertinent part: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully . . . inflicts thereon unjustifiable physical pain . . ., or having the care or custody of any child, willfully causes . . . the person or health of that child to be injured,. . . shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years."
The prosecution proceeded on the third branch of this omnibus statute,
Defendant notes that in denying his motion for acquittal, the trial court characterized the evidence of force likely to produce great bodily harm as being "very close." Defendant asserts that in fact the evidence was legally insufficient, because the record lacks any testimony about the degree of force of the son's impact with the ground, the son testified that the slaps did not
Defendant relies heavily on cases involving the charge of assault with force likely to produce great bodily injury. These cases quite naturally focus on the force actually used to determine if that force was likely to cause great bodily injury to the victim. For example, defendant cites People v. Duke (1985) 174 Cal.App.3d 296, 302-303 [219 Cal.Rptr. 873], in which the court held that a momentary stranglehold of itself without any effort to choke the victim, during which the victim could still breathe, and resulting only in a scratch from her own earring was not sufficient to establish assault with force likely to produce great bodily injury.
For example, in Sargent, our high court noted that the age of the infant victim, the fragile physical development of the infant victim, and the degree of force used were circumstances and conditions a jury could consider. "By contrast, if [the victim] had been a 17-year-old varsity linebacker, those facts would also have been `circumstances or conditions' the jury would consider." (Sargent, supra, 19 Cal.4th at p. 1221.)
This court recently discussed the element of circumstances or conditions likely to produce great bodily injury in Racy, a case involving felony elder abuse.
The "[d]efendant `zapped' [the victim] in the leg with a stun gun, causing him substantial pain. Presumably, to escape the situation and avoid more pain, [the victim] retreated to his bedroom, and defendant gave chase following `so close[ly]' that [the victim] could not shut the bedroom door. When [the victim] moved to the bed, defendant repeatedly `zapped' the stun gun `in the air' and then `tip[ped] [the victim] over' and grabbed his wallet, tearing [the victim's] jeans pocket. The struggle moved the bed approximately one foot away from the wall and caused [the victim] to trip. [¶] From this evidence, the jury reasonably could have concluded that defendant's close pursuit of [the victim] (which prevented [the victim] from locking the door) or the force defendant exerted on [the victim] (which was strong enough to tip him over, tear his jeans pocket, and cause a struggle in which [the victim] tripped and the bed moved one foot) likely could have caused [the victim] to fall and break a bone, causing him great bodily harm. As stated, [the victim's] knees are disabled and he is 74 years old, which, as a matter of common knowledge, is an age that carries with it an increased risk of bone fractures from a fall. The jury was in the best position to observe [the victim's] condition at trial, and we will not second-guess the jury's finding that defendant inflicted pain or suffering on [the victim] `under circumstances or conditions likely to produce great bodily harm or death' where the record contains sufficient evidence to support that finding." (Racy, supra, 148 Cal.App.4th at p. 1333, italics added.)
We acknowledge that there is scant evidence in the record concerning the characteristics of defendant's son and defendant. The prosecutor never asked how tall the son was or how much he weighed on the date of the incident. Likewise, there is no evidence in the record concerning defendant's height and weight.
Nevertheless, defendant's son was only 14 years old. Although height and weight are difficult to estimate, it is clear from the photographic evidence that he is not a large teenager. Indeed, he appears to have been of average height and relatively thin at the time. He is certainly not the varsity linebacker mentioned in Sargent. We also note that the son testified he could not jump on defendant's back when defendant was chasing the wife because defendant was "too tall." Thus, the evidence suggests that this 14-year-old boy was smaller than defendant.
As the prosecutor noted in his closing argument, the acts underlying the charges did not take place on a cushioned surface. Defendant tripped the victim, causing him to fall onto his back on the ground outside of the house. The photographs depict a bare dirt area littered with leaves and rocks.
Although a fusillade of open-handed "bitch slaps" might not ordinarily result in great bodily injury, a reasonable jury rationally could conclude that there was a substantial danger of eye injury had the son made an unanticipated turn of the head in an effort to resist defendant. Also, it would be rational to conclude that falling on rocky ground onto one's back involved sufficient force to make great bodily harm likely on impact. In such a fall, there was a substantial danger of the son's head hitting the ground, thus presenting a serious risk of head injury. Also, it is common knowledge that falling to the ground as the result of an unexpected tripping creates a substantial danger of broken bones, torn ligaments or other injuries. The fact that the injuries sustained did not rise to the level of great bodily injury does not mean that there was not a substantial danger or well-founded risk of great bodily injury.
Defendant's wife gave a somewhat different version of the events than did the couple's son. Her testimony, coupled with that of the son, warranted self-defense instructions.
The wife testified that while she and their son were watching television, the son was showing her his "cool" cellular phone. The son tried to hide the
The wife grabbed a cordless phone while the two "scuffl[ed]" and told them she was calling the police. She testified "They wouldn't stop fighting. I didn't know what to do. . . . [¶] . . . [¶] . . . I didn't want them to hurt each other." She described the scuffling "[l]ike bitch slapping . . . trying to manhandle each other."
As she walked out of the house with the phone in her hand, she heard the son yell, "Mom, run." She ran a few steps, but turned around and saw defendant and their son "both like falling to the ground, scuffling." She testified that defendant got up and started to run and their son ran after defendant. The son was "like halfway on [defendant], and they're like dragging each other." Defendant was not advancing on her. Instead, he was going toward his truck. However, she admitted that defendant threw a rock at her while she was speaking to the 911 operator.
Defense counsel requested that the court give self-defense instructions applicable to both the assault count in which the son was alleged to be the victim and the child abuse count. He argued that the son was not a "young child," that the son was angry with his father and wanted to fight him, the jury could infer that the son was an "active individual in any . . . physical confrontation," and find that defendant acted in self-defense.
The trial court agreed to instruct on self-defense with respect to the felony assault and lesser included offense of simple assault of the son. However, it refused defendant's request to instruct on self-defense in connection with the count of felony child abuse and the lesser included offense of simple child abuse. The court noted there were no cases that explicitly sanctioned self-defense as a defense to child abuse, and it agreed with the prosecutor that the defense of parental discipline incorporated the same reasonable use of force concept as the self-defense instruction. The prosecutor also argued, and the court apparently believed, that the defense of parental discipline is grounded in statute and that the Legislature had expressed through legislation a desire
The Legislature has spoken on the defense of self-defense, but not on the defense of parental discipline. Self-defense is codified in statute. Section 692 provides that, "Lawful resistance to the commission of a public offense may be made: [¶] 1. By the party about to be injured; [¶] 2. By other parties." Section 693 provides in pertinent part, "Resistance sufficient to prevent the offense may be made by the party about to be injured: [¶] 1. To prevent an offense against his person, or his family, or some member thereof."
Thus, the parental discipline instruction given by the trial court did not substitute for the concepts related to the defense of self-defense. It was error to exclude self-defense as a defense to felony child abuse and simple child abuse.
The error was, nevertheless, harmless under any standard. As we have noted, the assault count and the child abuse count were based on the same conduct. Since the court instructed on self-defense in connection with the felony assault and the lesser included offense of simple assault, and the jury convicted defendant of the lesser included offense, it necessarily rejected self-defense as a legal justification for defendant's conduct. Therefore, any error in failing to instruct on self-defense in connection with the child abuse count was harmless under any standard of review. (Cf. People v. Carter (1998) 60 Cal.App.4th 752, 756 [70 Cal.Rptr.2d 569] (Carter); People v. Dyer (1988) 45 Cal.3d 26, 65 [246 Cal.Rptr. 209, 753 P.2d 1].)
Defendant attempts to avoid the application of harmless error by asserting that there is an inconsistency between the acquittal of felony assault and the guilty verdict on the felony child abuse count since both verdicts were grounded on the same conduct. Defendant argues the application of self-defense to the felony assault charge explains this perceived inconsistency. He contends that the jury could have based its verdicts on the finding that the use of force underlying the assault count was justifiable self-defense while the same use of force was not justified as parental discipline. Defendant asserts he was prejudiced because if the jury had been allowed to consider self-defense on the felony child abuse count, it would have convicted him of no more than simple child abuse consistent with the verdict of simple assault on the felony assault count.
Defendant also contends that the jury could have determined defendant acted in lawful self-defense when he tripped his son, pinned him to the ground and slapped him, but convicted defendant of simple assault based on the acts that occurred inside the house. Here defendant ignores the prosecutor's express election. In his closing argument, the prosecutor told the jury the charges were based on the conduct that occurred outside of the home. In effect, the prosecutor told the jury he was not prosecuting defendant for the events that occurred inside the house relative to his son.
However, since the jury necessarily rejected his claim of justifiable discipline in connection with its verdict on the child abuse count, any error in
We strike the no-visitation order from the judgment, and affirm it as thus modified. The trial court is directed to prepare an amended abstract of judgment deleting the no-visitation order and reflecting that defendant was sentenced to the low term for his conviction for felony child abuse. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
Raye, P. J., and Butz, J., concurred.
The title is misleading. To avoid potential confusion, we suggest that the Judicial Council consider retitling CALCRIM No. 821 to "Child Abuse Under Circumstances or Conditions Likely to Cause Great Bodily Harm or Death."
As our high court has observed, section 368 is patterned on and virtually identical to section 273a. (People v. Valdez (2002) 27 Cal.4th 778, 787 [118 Cal.Rptr.2d 3, 42 P.3d 511]; Sargent, supra, 19 Cal.4th at p. 1216, fn. 6; People v. Heitzman (1994) 9 Cal.4th 189, 204-205 [37 Cal.Rptr.2d 236, 886 P.2d 1229].)
The court said, "[I]n looking at the self-defense instruction, [CALCRIM No.] 3470, and the parental right to punish a child, [CALCRIM No.] 3405, which is a defense to Count 3 and the lesser included, both of those offenses deal with physical force, justifiable physical force. So it looks like the Legislature intended to use similar language for the various aspects of this case that could potentially come out in facts."
When counsel for defendant sought clarification of how he could argue parental discipline instead of self-defense on the child abuse charge in the context of the evidence in this case, the court said, "They're similar in terms of the language, and then you point out to the jury that the Legislature used certain phrases . . . . [¶] . . . [¶] . . . You juxtapose the defenses and explain that there are key phrases here which apply to each defense. . . [¶] . . . [¶] . . . but the one thing that you're not going to be able to do is to blend the division between the defenses and the offense to which it applies."
Self-defense has also been codified as a defense in civil cases. Civil Code section 50 provides in pertinent part: "Any necessary force may be used to protect from wrongful injury the person . . . of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family . . . ."
