California Criminal Jury Instructions (CALCRIM) (2017)

823. Child Abuse

Download PDF
823.Child Abuse (Misdemeanor) (Pen. Code, § 273a(b))
The defendant is charged [in Count ] with child abuse [in
violation of Penal Code section 273a(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A—inflicted pain>
[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on a child;]
<Alternative 1B—caused or permitted to suffer pain>
[1. The defendant willfully caused or permitted a child to suffer
unjustifiable physical pain or mental suffering;]
<Alternative 1C—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 1D—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;]
<Give element 2 when giving alternative 1B, 1C, or 1D.>
[AND]
[2. The defendant was criminally negligent when (he/she) caused or
permitted the child to (suffer[,]/ [or] be injured[,]/ [or] be
endangered)(;/.)]
<Give element 2/3 when instructing on parental right to discipline.>
[AND
(2/3). The defendant did not act while reasonably disciplining a
child.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
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.]
538
0026
[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.]
New January 2006; Revised August 2006, August 2009, 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 2/3 and CALCRIM No. 3405,
Parental Right to Punish a Child.
Give alternative 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give alternative 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 alternative 1C. Finally, give alternative 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(b).)
Give bracketed element 2 and the bracketed definition of “criminal negligence” if
alternative 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].)
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 823
539
0027
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(b); People v. Burton (2006) 143 Cal.App.4th
447, 453–457 [49 Cal.Rptr.3d 334]; 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].
• Willfully Defined. Pen. Code, § 7(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. 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, 358 [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, §§ 159–165.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.13[1], 142.23[7] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The
Rutter Group).
COMMENTARY
See Commentary to CALCRIM No. 821, Child Abuse Likely to Produce Great
Bodily Harm or Death.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 821, Child Abuse Likely to
Produce Great Bodily Harm or Death.
824–829. Reserved for Future Use
CALCRIM No. 823 ASSAULTIVE AND BATTERY CRIMES
540
0028