35 Cal. 3d 798, 201 Cal. Rptr. 311, 678 P.2d 886
Defendant Smith lived with her two daughters, three-and-a-half-year-old Bethany and two-year-old Amy, and David Foster.1 On the day Amy died, the child refused to sit on the couch instead of the floor to eat a snack. Defendant became angry, took Amy into the children's bedroom, spanked her and slapped her in the face.2
Amy then went toward the corner of the bedroom often used for discipline. Defendant hit her repeatedly, knocking her to the floor. Foster joined defendant in striking Amy. Both used their hands and a paddle on the child and were also biting her. Foster put a wastebasket on Amy's head and hit her on the head with his fist. Defendant knocked the child backwards and she fell, hitting her head on the closet door.3
Amy stiffened and went into respiratory arrest. Defendant and Foster took her to the hospital, where defendant admitted that she beat her too hard and initially stated that Foster had not come home until after the incident. Amy died that evening.4 Her injuries were consistent with compressive force caused by numerous blows by hands, fists, and a paddle, and the severe head injury that was the direct cause of death occurred within an hour before the child was brought to the hospital.5
At trial defendant testified that although she had spanked Amy she then left the room. Foster entered, closed the door and began shouting at Amy. Defendant later entered and observed that Amy had a puffy lip and bite marks and bruises all over her lower body.6 Defendant eventually intervened when Amy stiffened and fainted, but she had been afraid to do so earlier because she feared Foster would attack her. Defendant agreed to take all responsibility for Amy's injuries at the hospital because of Foster's concern about his probation status.7
The jury convicted defendant of second degree murder, felony child abuse, and child beating. The court sentenced her to imprisonment for fifteen years to life on the murder count and stayed service of sentence on the remaining counts.8 Defendant appealed from the judgment of conviction.9
Whether felony child abuse may serve as the underlying felony to support a conviction of second degree murder on a felony-murder theory?10
The merger doctrine provides that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide.11 The evidence produced by the prosecution shows the felony to be an offense included in fact within the offense charged.12 The doctrine does not apply if the underlying offense was committed with an independent felonious purpose.13
No. The acts constituting the felony child abuse were the beating of Amy by defendant and Foster that directly caused her death. This made the felony an integral part of the homicide with no independent felonious purpose such as acquiring money or property. The purpose of the conduct was the very assault which resulted in death.14 The homicide was the result of child abuse of the assaultive variety under Penal Code section 273a, subdivision (1).15
The underlying felony was unquestionably an integral part of and included in fact in the homicide.16 There was no independent purpose for the conduct.17 To apply the felony-murder rule in this situation would extend it beyond any rational function that it is designed to serve.18
It was therefore error to give a felony-murder instruction in this case, and the judgment must be reversed insofar as it convicts defendant of second degree murder.19
Whether a defendant facing an indeterminate term of fifteen years to life upon conviction of second degree murder is entitled to twenty-six peremptory challenges?20
Penal Code section 1070 grants twenty-six challenges to a defendant charged with an offense punishable by imprisonment for life.21 This includes any indeterminate life term that is as severe in its effect as a determinate life term, measured by time to parole eligibility under section 3046 and section 2931.
Yes. The court sentenced defendant to imprisonment for fifteen years to life on the murder count under Penal Code section 190.22 If defendant is convicted on retrial of second degree murder, she will be subject to an indeterminate term of fifteen years to life.23 She will not be eligible for parole until she has served two-thirds of that sentence, or ten years.24
A defendant subject to a determinate life term can be paroled after seven years.25 Because that sentence is thus more severe than a determinate life term, defendant will be entitled to twenty-six peremptory challenges under section 1070.26
Defendant will therefore be entitled to twenty-six peremptory challenges under section 1070 in the event of a retrial on the murder charge.27
Whether the felony child abuse statute and the child beating statute are unconstitutionally vague?28
A statute is unconstitutionally vague if its terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.29 The statutes must provide both notice to those whose activities are proscribed and guidance for the courts called on to apply them.30
No. The phrases unjustifiable physical pain or mental suffering in section 273a, subdivision (1), and cruel or inhuman corporal punishment or injury resulting in a traumatic condition in section 273d do not render the statutes void for vagueness.31 The statutes provide both notice to those whose activities are proscribed and guidance for the courts.32 Defendant's conduct here clearly falls within the intended prohibitions of sections 273a, subdivision (1), and 273d.33 The statutes have withstood similar constitutional challenges in the Courts of Appeal, and under the doctrine of stare decisis those holdings are given great weight.
The felony child abuse and child beating statutes are not unconstitutionally vague.34