820. Assault Causing Death of Child
820. Assault Causing Death of Child
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.
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;
7. The defendant's act caused the child's death(;/.)
<Give element 8 when instructing on parental right to discipline>
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:
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;
3. The death would not have happened without the act.
A natural 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.
A substantial 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.]
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].)
Elements. Pen. Code, § 273ab; 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 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].
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 (Matthew Bender).
Lesser Included Offenses
Attempted Assault on Child With Force Likely to Produce Great Bodily Injury. Pen. Code, §§ 664, 273ab.
Assault. Pen. Code, § 240.
Assault With Force Likely to Produce Great Bodily Injury. Pen. Code, § 245(a)(1); People v. Bausta (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].)
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].)
(New January 2006)