Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Assaultive and Battery Crimes CALCRIM No. 821. Child Abuse Likely to Produce Great Bodily Harm or Death (Pen. Code, § 273a(a))

CALCRIM No. 821. Child Abuse Likely to Produce Great Bodily Harm or Death (Pen. Code, § 273a(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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:

[1. The defendant willfully inflicted unjustifiable physical pain or

mental suffering on a child;]

[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)(;/.)

[AND]

[3. The defendant was criminally negligent when (he/she) caused or

permitted the child to (suffer/ [or] be injured/ [or] be

endangered)(;/.)]

[AND

4. The defendant did not act while reasonably disciplining a child.]

536

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.

Give element 1A if it is alleged that the defendant directly inflicted unjustifiable

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537

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].

• General Criminal Intent Required for Direct Infliction of Pain or Suffering.

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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].

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 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.

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and

Crimes Against Decency, §§ 161-168.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

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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).

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Page last reviewed May 2023