California Criminal Jury Instructions (CALCRIM) (2017)

821. Child Abuse Likely to Produce Great Bodily Harm or Death (Pen. Code, § 273a(a))

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821.Child Abuse Likely to Produce Great Bodily Harm or Death
(Pen. Code, § 273a(a))
The defendant is charged [in Count ] with child abuse likely to
produce (great bodily harm/ [or] death) [in violation of Penal Code
section 273a(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative A—inflicted pain>
[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on a child;]
<Alternative B—caused or permitted to suffer pain>
[1. The defendant willfully caused or permitted a child to suffer
unjustifiable physical pain or mental suffering;]
<Alternative C—while having custody, caused or permitted to suffer
injury>
[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child’s person or health to be injured;]
<Alternative D—while having custody, caused or permitted to be placed
in danger>
[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child to be placed in a situation where
the child’s person or health was endangered;]
[AND]
2. The defendant (inflicted pain or suffering on the child/ [or]
caused or permitted the child to (suffer/ [or] be injured/ [or] be
endangered)) under circumstances or conditions likely to
produce (great bodily harm/ [or] death)(;/.)
<Give element 3 when giving alternatives 1B, 1C or 1D>
[AND]
[3. The defendant was criminally negligent when (he/she) caused or
permitted the child to (suffer/ [or] be injured/ [or] be
endangered)(;/.)]
<Give element 4 when instructing on parental right to discipline>
[AND
4. The defendant did not act while reasonably disciplining a child.]
530
0018
Someone commits an act willfully when he or she does it willingly or on
purpose.
The phrase likely to produce (great bodily harm/ [or] death) means the
probability of (great bodily harm/ [or] death) is high.
Great bodily harm means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
Achild is any person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Unjustifiable physical pain or mental suffering is pain or suffering that
is not reasonably necessary or is excessive under the circumstances.]
[Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that is a gross departure from
the way an ordinarily careful person would act in the same
situation;
2. The person’s acts amount to disregard for human life or
indifference to the consequences of his or her acts;
AND
3. A reasonable person would have known that acting in that way
would naturally and probably result in harm to others.]
[A child does not need to actually suffer great bodily harm. But if a
child does suffer great bodily harm, you may consider that fact, along
with all the other evidence, in deciding whether the defendant
committed the offense.]
New January 2006; Revised August 2006, April 2010, October 2010, February
2013
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 4 and CALCRIM No. 3405,
Parental Right to Punish a Child.
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0019
Give element 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give element 1B if it is alleged that the
defendant caused or permitted a child to suffer. If it is alleged that the defendant
had care or custody of a child and caused or permitted the child’s person or health
to be injured, give element 1C. Finally, give element 1D if it is alleged that the
defendant had care or custody of a child and endangered the child’s person or
health. (See Pen. Code, § 273a(a).)
Give bracketed element 3 and the bracketed definition of “criminally negligent” if
element 1B, 1C, or 1D is given alleging that the defendant committed any indirect
acts. (See People v. Valdez (2002) 27 Cal.4th 778, 788–789 [118 Cal.Rptr.2d 3, 42
P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43, 48–49 [119 Cal.Rptr. 780].)
Give on request the bracketed definition of “unjustifiable” physical pain or mental
suffering if there is a question about the necessity or degree of pain or suffering.
(See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P. 801].)
Give on request the bracketed paragraph stating that a child need not actually suffer
great bodily harm. (See People v. Cortes (1999) 71 Cal.App.4th 62, 80 [83
Cal.Rptr.2d 519]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [159
Cal.Rptr. 771].)
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].)
AUTHORITY
• Elements. Pen. Code, § 273a(a); People v. Cortes (1999) 71 Cal.App.4th 62,
80 [83 Cal.Rptr.2d 519]; People v. Smith (1984) 35 Cal.3d 798, 806 [201
Cal.Rptr. 311, 678 P.2d 886].
• Child Defined. See Fam. Code, § 6500; People v. Thomas (1976) 65
Cal.App.3d 854, 857–858 [135 Cal.Rptr. 644] [in context of Pen. Code,
§ 273d].
• Likely Defined. People v. Chaffın (2009) 173 Cal.App.4th 1348, 1351–1352
[93 Cal.Rptr.3d 531] [questioning analysis of term in People v. Wilson]; People
v. Wilson (2006) 138 Cal.App.4th 1197, 1204 [41 Cal.Rptr.3d 919].
• Great Bodily Harm or Injury Defined. Pen. Code, § 12022.7(f); People v.
Cortes (1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519].
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204
Cal.App.3d 1455, 1462, 1468–1469 [251 Cal.Rptr. 904].
• Criminal Negligence Required for Indirect Conduct. People v. Valdez (2002)
27 Cal.4th 778, 788, 789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody
(1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780]; see People v. Penny
(1955) 44 Cal.2d 861, 879–880 [285 P.2d 926] [criminal negligence for
homicide]; Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [253 Cal.Rptr.
1, 763 P.2d 852].
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• General Criminal Intent Required for Direct Infliction of Pain or
Suffering. People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d
835, 970 P.2d 409]; see People v. Atkins (1975) 53 Cal.App.3d 348, 361 [125
Cal.Rptr. 855]; People v. Wright (1976) 60 Cal.App.3d 6, 14 [131 Cal.Rptr.
311].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 159–163.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.01[2][a][v], 142.23[7] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The
Rutter Group).
COMMENTARY
Any violation of Penal Code section 273a(a) must be willful. (People v. Smith
(1984) 35 Cal.3d 798, 806 [678 P.2d 886]; People v. Cortes (1999) 71 Cal.App.4th
62, 80 [83 Cal.Rptr.2d 519]; but see People v. Valdez (2002) 27 Cal.4th 778, 789
[118 Cal.Rptr.2d 3, 42 P.3d 511] [the prong punishing a direct infliction of
unjustifiable physical pain or mental suffering does not expressly require that the
conduct be willful].) Following Smith and Cortes, the committee has included
“willfully” in element 1A regarding direct infliction of abuse until there is further
guidance from the courts.
LESSER INCLUDED OFFENSES
• Attempted Child Abuse. Pen. Code, §§ 664, 273a(a).
Misdemeanor Child Abuse. Pen. Code, § 273a(b).
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.
Toney (1999) 76 Cal.App.4th 618, 621–622 [90 Cal.Rptr.2d 578] [quoting People v.
Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257]].)
Prenatal Conduct
Penal Code section 273a does not apply to prenatal conduct endangering an unborn
child. (Reyes v. Superior Court (1977) 75 Cal.App.3d 214, 217–218, 219 [141
Cal.Rptr. 912].)
Unanimity
The court has a sua sponte duty to instruct on unanimity when the prosecution has
presented evidence of multiple acts to prove a single count. (People v. Russo
(2001) 25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].) However, the
court does not have to instruct on unanimity if the offense constitutes a “continuous
course of conduct.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115–116 [127
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Cal.Rptr.2d 777].) Child abuse may be a continuous course of conduct or a single,
isolated incident. (Ibid.) The court should carefully examine the statute charged, the
pleadings, and the evidence presented to determine whether the offense constitutes
a continuous course of conduct. (Ibid.) See generally CALCRIM No. 3500,
Unanimity.
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