California Criminal Jury Instructions (CALCRIM) (2017)

820. Assault Causing Death of Child

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C. ABUSE OF OR INJURY TO CHILD, ELDER OR
DEPENDENT ADULT, SPOUSE
(i) Child
820.Assault Causing Death of Child (Pen. Code, § 273ab(a))
The defendant is charged [in Count ] with killing a child under the
age of 8 by assaulting the child with force likely to produce great bodily
injury [in violation of Penal Code section 273ab(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had care or custody of a child who was under the
age of 8;
2. The defendant did an act that by its nature would directly and
probably result in the application of force to the child;
3. The defendant did that act willfully;
4. The force used was likely to produce great bodily injury;
5. When the defendant acted, (he/she) was aware of facts that
would lead a reasonable person to realize that (his/her) act by its
nature would directly and probably result in great bodily injury
to the child;
6. When the defendant acted, (he/she) had the present ability to
apply force likely to produce great bodily injury to the child;
[AND]
7. The defendant’s act caused the child’s death(;/.)
<Give element 8 when instructing on parental right to discipline>
[AND
8. When the defendant acted, (he/she) was not reasonably
disciplining a child.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
An act causes death if:
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1. The death was the natural and probable consequence of the act;
2. The act was a direct and substantial factor in causing the death;
AND
3. The death would not have happened without the act.
Anatural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
Asubstantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the death.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 8 and CALCRIM No. 3405,
Parental Right to Punish a Child.
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
Related Instructions
CALCRIM No. 875, Assault With Deadly Weapon or Force Likely to Produce
Great Bodily Injury.
AUTHORITY
• Elements. Pen. Code, § 273ab(a); see People v. Malfavon (2002) 102
Cal.App.4th 727, 735 [125 Cal.Rptr.2d 618] [sometimes called “child abuse
homicide”].
• Great Bodily Injury Defined. Pen. Code, § 12022.7(f); People v. Albritton
(1998) 67 Cal.App.4th 647, 658 [79 Cal.Rptr.2d 169].
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Force Likely to Produce Great Bodily Injury. People v. Preller (1997) 54
CALCRIM No. 820 ASSAULTIVE AND BATTERY CRIMES
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Cal.App.4th 93, 97–98 [62 Cal.Rptr.2d 507] [need not prove that reasonable
person would believe force would be likely to result in child’s death].
• General Intent Crime. People v. Albritton (1998) 67 Cal.App.4th 647, 658–659
[79 Cal.Rptr.2d 169].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 99.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.13[2A], 142.23[7] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempted Assault on Child With Force Likely to Produce Great Bodily
Injury. Pen. Code, §§ 664, 273ab(b).
• Assault. Pen. Code, § 240.
• Assault With Force Likely to Produce Great Bodily Injury. Pen. Code,
§ 245(a)(1); People v. Basuta (2001) 94 Cal.App.4th 370, 392 [114 Cal.Rptr.2d
285].
Involuntary manslaughter is not a lesser included offense of Penal Code section
273ab. (People v. Stewart (2000) 77 Cal.App.4th 785, 796 [91 Cal.Rptr.2d 888];
Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 261–262 [86 Cal.Rptr.2d
384].)
Neither murder nor child abuse homicide is a necessarily included offense within
the other. (People v. Malfavon (2002) 102 Cal.App.4th 727, 743–744 [125
Cal.Rptr.2d 618].)
RELATED ISSUES
Care or Custody
“The terms ‘care or custody’ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (People v.
Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257].)
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 820
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