Filed 6/17/03
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
C038058
(Super. Ct. Nos.
CM011006, CM013225)
IVAN EDWARD COCKBURN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte
County, Thomas W. Kelly, J. Affirmed.
Law Office of R. Bruce Finch and R. Bruce Finch for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Jo Graves, Senior Assistant Attorney
General, Stephen G. Herndon and Alison Elle Alemán, Deputy
Attorneys General, for Plaintiff and Respondent.
*
Pursuant to California Rules of Court, rule 976.1, this
opinion is certified for publication with the exception of parts
I, II, and IV of the DISCUSSION.
1
An information charged defendant Ivan Edward Cockburn with
kidnapping (Pen. Code, § 207, subd. (a), count 1; undesignated
section references are to this code); felony child abuse
(§ 273a, subd. (a), count 2); assault by means of force likely
to produce great bodily injury (§ 245, subd. (a)(1), count 3);
and brandishing a deadly weapon, to wit, a knife, a misdemeanor
(§ 417, subd. (a)(1), count 4).
In connection with count 1
only, it was further alleged that defendant had sustained a
prior serious felony conviction, to wit, battery with serious
bodily injury (§§ 243, subd. (d), 667, subd. (a)).
A jury acquitted defendant on counts 3 and 4, and
deadlocked on counts 1 and 2.
On retrial, the jury convicted defendant on count 2 and
acquitted on count 1.1
Sentenced to state prison for an aggregate term of seven
years (the upper term of six years for child abuse plus a
consecutive one-third the midterm or one year for battery with
serious bodily injury in case No. CM011006), defendant appeals,
contending (1) the trial court erroneously instructed that proof
of a mental state no more culpable than criminal negligence was
sufficient for assaultive child abuse; (2) the trial court
1
The information also charged codefendant Lucas David
Ruggles with the same offenses. The first jury convicted
Ruggles on counts 2 and 4, and deadlocked on counts 1 and 3. On
retrial, the jury convicted Ruggles on count 3 and acquitted on
count 1. Ruggles appealed and this court affirmed the judgment.
(People v. Lucas David Ruggles (Sept. 24, 2002, C037984)
[nonpub. opn.].)
2
failed to instruct the jury sua sponte on voluntary intoxication
to negate the culpable mental state required for aiding and
abetting; and (3) the general child abuse statute (§ 273a) is
preempted by the specific willful injury to a child statute
(§ 273d) requiring reversal of his conviction.
In the published portion of the opinion, we conclude that
the prosecutor could properly elect to prosecute under section
273a rather than section 273d.
In the unpublished portion of
the opinion, we reject defendant’s other contentions of
prejudicial error.
We shall therefore affirm the judgment.
FACTS
The 15-year-old victim lived with his father in an
apartment in Chico.
On the evening of November 19, 1999,
defendant, Lucas Ruggles, and Ruggles’s brother visited the
victim at the apartment.
also present.
them later.
The victim’s older brother Josh was
They all drank beer.
Josh’s friend Jarod joined
They went next door to visit Jennifer P. and drank
some more beer.
The victim believed that defendant and Ruggles
were intoxicated because of the amount of beer they had consumed
and they were acting boisterously.
passed out.
At some point, defendant
While at Jennifer P.’s apartment, Ruggles and
defendant wanted $50 worth of marijuana.
it if they wanted it.
marijuana.
Josh said he could get
Ruggles, Josh, and Jarod left to buy the
In about an hour, they returned.
The victim saw
defendant and Ruggles examining the marijuana and heard them
3
complain about the quality.
Josh offered to seek a refund but
defendant and Ruggles declined.
Josh and Jarod then left.
Defendant and Ruggles were still unhappy with the
marijuana.
Ruggles, angry and yelling, went to the victim’s
father’s apartment seeking Josh.
The victim followed Ruggles.
Ruggles woke up the victim’s father and the victim told his
father to go back to sleep.
When the victim walked outside the
apartment, defendant put the victim in a headlock and took him
to the ground where defendant held the victim by his throat with
his boot.
Defendant and Ruggles grabbed the victim and forced him
into the back seat of defendant’s car.
While defendant drove,
Ruggles sat next to the victim and held a knife with its sharp
edge towards the victim.
Ruggles threatened to kill the victim
if he did not show them where Josh was.
While driving,
defendant demanded the knife, held it towards the victim and
threatened the victim.
The victim directed them to Jarod’s
house where he thought Josh might be but was not.
Defendant
drove to a gravel parking lot where they all got out of the car.
Defendant and Ruggles then beat, kicked and stomped the victim’s
head, sides and back numerous times, for about five minutes.
The victim started to run away but was tackled and dragged on
his back by his legs to the car where defendant and Ruggles
continued to beat, kick and stomp on the victim’s head and upper
torso.
After beating the victim, they put the victim in the
back seat of the car.
While defendant and Ruggles searched the
4
parking lot for the keys to the car, the victim jumped out of
the car and ran to an intersection where he flagged down a
passing motorist who took the victim to his father’s apartment.
Defendant and Ruggles returned to Jennifer P.’s apartment
and said that they “had just beat[en] up the guy, kicked his
ass, kicked him a bunch, left him for dead, beat the crap out of
him.”
The victim reported the incident the next day.
When the
victim recounted the incident to the police, he omitted the fact
that Josh had purchased marijuana.
He was afraid because of the
threats made by defendant or Ruggles that if the victim said
anything the victim’s brother and father would be killed.
The
victim suffered several injuries on the right side of his body
including cuts and abrasions to his face, ear, elbow, and a
black eye.
He also sustained a bump on the back of his head.
When deputy sheriffs went to defendant’s residence,
defendant answered the door.
When asked to speak with Ivan
Cockburn, defendant identified himself as Steve Walsh and
advised the deputies that Ivan Cockburn had been evicted the
previous month because he always got drunk and into fights and
that Cockburn’s car sitting in the driveway had not been moved
for about a month since Cockburn had left.
saw evidence of recent movement.
The deputy sheriff
As he started to explain why
he doubted the car had sat so long, defendant fled.
Later, a
police officer saw defendant walking along the sidewalk and when
5
defendant saw the patrol car, he ran.
The officer gave chase
and caught him shortly thereafter.
Defendant did not testify.
Boyd to testify.
He called Deputy Sheriff Steve
During the investigation, the victim changed
his story of the events numerous times.
DISCUSSION
I
Defendant contends the trial court erroneously instructed
the jury on the crime of felony child abuse in that the trial
court instructed that proof of a mental state no more culpable
than criminal negligence was sufficient for assaultive child
abuse.
We conclude that the trial court did not commit error,
that any error was invited and, in any event, any error was
harmless.
The trial court instructed the jury in the language of
CALJIC No. 9.37 (1997 rev. (6th ed. 1996)) as follows:
“Every person who[,] under circumstances or conditions
likely to produce great bodily harm or death, willfully inflicts
unjustifiable physical pain or mental suffering on a child, or[2]
(a) willfully causes, or as a result of criminal negligence
permits the child to be injured, or (b) willfully causes or as a
result of criminal negligence permits the child to be placed in
2
In reading the instruction, the court omitted a line in the
written instruction at this point which states, “willfully
causes or, as a result of criminal negligence, permits a child
to suffer unjustifiable physical pain or mental suffering, and
. . . .”
6
a situation where his or her person or health is endangered, is
guilty of a violation of Penal Code [section]
273a[, subdivision] (a), a crime.[3]
“The word [‘]willfully[,’] as used in these instructions
means [‘]with knowledge of the consequences[’] or
[‘]purposefully.[’]
“In the crime charged in the Information, there must exist
a union or joint operation of act or conduct and either general
criminal intent or criminal negligence.
To establish general
criminal intent it is not necessary that there should exist an
intent to violate the law.
A person who intentionally does that
which the law declares to be a crime, is acting with general
criminal intent even though he may not know that such act or
conduct is unlawful.
“Unjustifiable physical pain or mental suffering is the
infliction of pain or suffering which is not reasonably
necessary or is excessive under the circumstances.
Great bodily
harm refers to significant or substantial injury and does not
refer to trivial or insignificant injury.
“If a child is placed in a situation likely to produce
great bodily harm or death, it is not necessary that actual
bodily injury occur in order to constitute the offense.
3
In setting forth CALJIC No. 9.37 given by the trial court,
defense appellate counsel ends his quote of the instruction at
this point and ignores the remainder of the instruction which
sets forth the elements of the offense.
7
However, if great bodily injury does occur, its nature and
extent are to be considered in connection with all the evidence
in determining whether or not the circumstances were likely to
produce great bodily harm or death.
In order to prove this
crime, each of the following elements must be proved.
“A person willfully inflicted unjustifiable physical pain
or mental suffering on a child; or a person willfully caused or,
as a result of criminal negligence permitted a child to suffer
unjustifiable physical pain or mental suffering; and the
person’s conduct occurred under circumstances likely to produce
great bodily harm or death.”
The court further instructed the jury in the language of
CALJIC No. 3.36 as follows:
“[‘]Criminal negligence[’] means conduct which is more than
ordinary negligence.
Ordinary negligence is the failure to
exercise ordinary or reasonable care.
[‘]Criminal negligence[’]
refers to a negligent act which is aggravated, reckless or
flagrant and which is such a departure from that which would be
the conduct of an ordinary prudent, careful person under the
same circumstances as to be contrary to a proper regard for
danger to human life or to constitute indifference to the
consequences of that act.
“The facts must be such that the consequences of the
negligent act could reasonably have been foreseen and it must
appear that the danger to human life was not a result of an
inattention, mistaken judgment or misadventure, but the natural
8
and probable result of an aggravated, reckless or flagrantly
negligent act.”
Since the conduct at issue was the direct infliction of
unjustifiable pain and suffering on a child, defendant argues
that criminal negligence was not an element of the offense.
He
claims that felony child abuse is a general intent crime.
Defendant brought a new trial motion on this very issue and
there was a lengthy hearing.
At the hearing, the prosecutor
noted that in discussing jury instructions off-the-record,
defendant’s attorney “addressed the fact that the People had
submitted a clean copy of the jury instruction dealing with
child abuse 9.37 CALJIC and the fact that the negligence,
criminal negligence was not included.
“The Court advised [defendant’s attorney] that’s the way it
was read during the first trial.
[Defendant’s attorney] then
specifically requested that it be included here.”
In denying
the motion for new trial, the court noted that CALJIC No. 9.37
as given presented two theories--intentional infliction and
criminal negligence--that the prosecutor objected to the latter
theory as not his theory and had argued accordingly, but that
criminal negligence was included at defense request.
The trial
court concluded any error was invited but not prejudicial.
We
conclude defense counsel made a conscious, deliberate tactical
choice so any error was invited and defendant cannot raise the
issue on appeal.
(People v. Wader (1993) 5 Cal.4th 610, 657-
658.)
9
Even if not invited error, we find no trial court error.
A
trial court must instruct on the general principles of law
relevant to the issues raised by the evidence adduced at trial,
that is, those principles of law closely and openly connected
with the facts and which are necessary for the jury to
understand the case.
(People v. Breverman (1998) 19 Cal.4th
142, 154.)
Because the court omitted language in reading the
instruction, defendant argues that the court essentially charged
the jury that it could find him guilty of felony child abuse
based on criminal negligence.
Defendant focuses on one part of
the instruction read by the court to the jury and ignores that
portion which the court read correctly which sets forth the
elements of the offense.
In determining whether the jury was
properly instructed, we consider the entire charge to the jury,
not just one particular instruction or parts of an instruction.
(People v. Wade (1995) 39 Cal.App.4th 1487, 1491.)
We assume
that “jurors are capable of understanding and correlating all
the instructions which are given to them.
[Citation.]”
(People
v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.)
“Section 273a, subdivision (a) ‘is an omnibus statute that
proscribes essentially four branches of conduct.’
As relevant here, it provides:
[Citation.]
‘Any person who, under
circumstances or conditions likely to produce great bodily harm
or death, [1] willfully causes or permits any child to suffer,
or [2] inflicts thereon unjustifiable physical pain or mental
10
suffering, or [3] having the care or custody of any child,
willfully causes or permits the person or health of that child
to be injured, or [4] willfully causes or permits that child to
be placed in a situation where his or her person or health is
endangered, shall be punished by imprisonment in a county jail
not exceeding one year, or in the state prison for two, four, or
six years.’
(§ 273a, subd. (a).)”
(People v. Valdez (2002) 27
Cal.4th 778, 783 (Valdez), fn. omitted.)
In People v. Sargent (1999) 19 Cal.4th 1206, the Supreme
Court concluded that the mens rea for direct infliction of
unjustifiable physical pain and mental suffering, or felony
child abuse, was general intent.
(Id. at pp. 1219-1224.)
In
Valdez, supra, 27 Cal.4th 778, the Supreme Court concluded that
the mens rea for indirect infliction of harm on a child, or
felony child endangerment, is criminal negligence.
(Id. at
pp. 787-791.)
Defendant was charged with violating section 273a,
subdivision (a) by conduct which constituted felony child abuse
and felony child endangerment:
Defendant “did willfully and
unlawfully, under circumstances likely to produce great bodily
harm and death, injure, cause, and permit a child, [the victim],
to suffer and to be inflicted with unjustifiable physical pain
and mental suffering, and, having the care and custody of said
child, injure, cause, and permit the person and health of said
child to be injured and did willfully cause and permit said
child to be placed in such situation that his/her person and
11
health was/were endangered.”
Accordingly, the trial court
instructed the jury on the two theories, felony child abuse and
felony child endangerment.
For felony child abuse, or direct
infliction of unjustifiable pain, the instruction on the crime
contained the general intent mens rea.
For felony child
endangerment, or indirect infliction of harm, the court
instructed on criminal negligence.
“Criminal negligence is
‘“aggravated, culpable, gross, or reckless . . . conduct . . .
[that is] such a departure from what would be the conduct of an
ordinarily prudent or careful [person] under the same
circumstances as to be incompatible with a proper regard for
human life . . . .”’
[Citation.]”
(Valdez, supra, 27 Cal.4th
778, 783.)
Defendant and the Attorney General both argue on appeal
that defendant’s violation of section 273a, subdivision (a) was
based on defendant’s direct infliction of unjustifiable physical
pain upon the victim.
Defendant beat, kicked and stomped on the
victim’s head and helped drag the victim across a gravel parking
lot.
The victim suffered numerous injuries.
The evidence
adduced at trial overwhelmingly showed direct, not indirect,
infliction of physical pain.
The prosecutor argued to the jury
that he was not relying on criminal negligence, but mentioned it
as a possible theory and claimed defendant violated the statute
by directly inflicting unjustifiable pain.
That the court
instructed on criminal negligence mens rea for indirect
12
infliction of harm was harmless on this record.
(People v.
Guiton (1993) 4 Cal.4th 1116, 1128-1130.)
II
The trial court defined voluntary intoxication and
instructed that the same was no defense to violating section
273a, subdivision (a).
(CALJIC Nos. 4.20, 4.22.)4
Defendant
complains that the trial court erroneously failed to instruct
sua sponte that voluntary intoxication is relevant to aiding and
abetting liability.
(CALJIC No. 4.21.2.)5
We find no error.
Voluntary intoxication is not a defense to a general intent
crime but is a defense to a specific intent offense.
(§ 22;
People v. Mendoza (1998) 18 Cal.4th 1114, 1128 (Mendoza); People
4
The trial court instructed the jury in the language of
CALJIC Nos. 4.20 and 4.22 as follows: “No act committed by a
person while in a state of voluntary intoxication is less
criminal by reason of that condition. In the crimes charged in
counts one, two and three or any lesser included crime, the fact
that a defendant was voluntarily intoxicated is not a defense
and does not relieve him of responsibility for the crime.
“Intoxication of a person is voluntary if it results from
the willing use of any intoxicating liquor, drug or other
substance, knowing that it is capable of an intoxicating effect
or when he willingly assumes the risk of that effect[].
Voluntary intoxication includes the voluntary ingestion,
injecting or taking by any other means of any intoxicating
liquor, drug or other substance.”
5
CALJIC No. 4.21.2 provides: “In deciding whether a
defendant is guilty as an aider and abettor, you may consider
voluntary intoxication in determining whether a defendant tried
as an aider and abettor had the required mental state.
[However, intoxication evidence is irrelevant on the question
whether a charged crime was a natural and probable consequence
of the [target] [originally contemplated] crime.]”
13
v. Whitfield (1994) 7 Cal.4th 437, 451; People v. Hood (1969) 1
Cal.3d 444, 456-457; People v. Martin (2000) 78 Cal.App.4th
1107, 1112-1115.)
Aiding and abetting liability is based on proof that the
defendant acted with knowledge of the perpetrator’s criminal
intent and with an intent or purpose to commit or facilitate or
encourage the commission of the crime.
Thus, the mental state
for aiding and abetting which has intent and knowledge
components is a required specific intent.
(Mendoza, supra, 18
Cal.4th 1114, 1129, 1131, 1133.)
A defendant is entitled to an intoxication instruction upon
request where there is substantial evidence of his voluntary
intoxication and that the intoxication affected his formation of
the requisite mental state or criminal intent.
(Mendoza, supra,
18 Cal.4th 1114, 1133; People v. Williams (1997) 16 Cal.4th 635,
677; People v. Marshall (1996) 13 Cal.4th 799, 846-848; People
v. Williams (1988) 45 Cal.3d 1268, 1311-1312.)
The trial court has no duty to instruct sua sponte on
intoxication, which is a pinpoint instruction.
(Mendoza, supra,
18 Cal.4th 1114, 1134; People v. Castillo (1997) 16 Cal.4th
1009, 1014.)
Here, defendant’s attorney did not request the instruction
so there was no trial court error.
Defendant does not raise the
issue of ineffective assistance of counsel.
Although the victim
testified that defendant was intoxicated and passed out earlier
in the evening, the victim also testified that later defendant
14
wanted some marijuana, examined the marijuana and decided it was
of poor quality.
Thereafter, defendant drove the car, followed
the victim’s directions to Jarod’s house looking for Josh,
threatened the victim, held a knife with one hand and drove with
the other hand to a parking lot.
and stomped the victim.
There defendant beat, kicked,
There was no evidence of the effect of
the alcohol on defendant’s state of mind nor was there any
evidence of defendant’s blood alcohol content to support a
conclusion that he lacked knowledge of Ruggles’s criminal
intent.
Defendant did not testify.
Defense counsel cannot be
faulted for not requesting an intoxication instruction because
there was no substantial evidence to support one.
III
Defendant contends felony child abuse under section 273a,
subdivision (a),6 a general statute, for which he was charged and
6
Section 273a provides: “(a) Any person who, under
circumstances or conditions likely to produce great bodily harm
or death, willfully causes or permits any child to suffer, or
inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any child, willfully
causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed
in a situation where his or her person or health is endangered,
shall be punished by imprisonment in a county jail not exceeding
one year, or in the state prison for two, four, or six years.
“(b) Any person who, under circumstances or conditions
other than those likely to produce great bodily harm or death,
willfully causes or permits any child to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or
having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or
willfully causes or permits that child to be placed in a
15
convicted, is preempted by corporal injury to a child under
section 273d,7 a special statute, for which he was not charged;
situation where his or her person or health may be endangered,
is guilty of a misdemeanor.
“(c) If a person is convicted of violating this section and
probation is granted, the court shall require the following
minimum conditions of probation:
“(1) A mandatory minimum period of probation of 48 months.
“(2) A criminal court protective order protecting the
victim from further acts of violence or threats, and, if
appropriate, residence exclusion or stay-away conditions.
“(3)(A) Successful completion of no less than one year of a
child abuser’s treatment counseling program approved by the
probation department. The defendant shall be ordered to begin
participation in the program immediately upon the grant of
probation. The counseling program shall meet the criteria
specified in Section 273.1. The defendant shall produce
documentation of program enrollment to the court within 30 days
of enrollment, along with quarterly progress reports.
“(B) The terms of probation for offenders shall not be
lifted until all reasonable fees due to the counseling program
have been paid in full, but in no case shall probation be
extended beyond the term provided in subdivision (a) of Section
1203.1. If the court finds that the defendant does not have the
ability to pay the fees based on the defendant’s changed
circumstances, the court may reduce or waive the fees.
“(4) If the offense was committed while the defendant was
under the influence of drugs or alcohol, the defendant shall
abstain from the use of drugs or alcohol during the period of
probation and shall be subject to random drug testing by his or
her probation officer.
“(5) The court may waive any of the above minimum
conditions of probation upon a finding that the condition would
not be in the best interests of justice. The court shall state
on the record its reasons for any waiver.
7
On November 19, 1999, when defendant committed his crime,
section 273d provided: “(a) Any person who willfully inflicts
upon a child any cruel or inhuman corporal punishment or injury
resulting in a traumatic condition is guilty of a felony and
shall be punished by imprisonment in the state prison for two,
four, or six years, or in a county jail for not more than one
16
year, by a fine of up to six thousand dollars ($6,000), or by
both that imprisonment and fine.
“(b) Any person who is found guilty of violating
subdivision (a) shall receive a four-year enhancement for a
prior conviction of that offense provided that no additional
term shall be imposed under this subdivision for any prison term
served prior to a period of 10 years in which the defendant
remained free of both prison custody and the commission of an
offense that results in a felony conviction.
“(c) If a person is convicted of violating this section
and probation is granted, the court shall require the following
minimum conditions of probation:
“(1) A mandatory minimum period of probation of 36 months.
“(2) A criminal court protective order protecting the
victim from further acts of violence or threats, and, if
appropriate, residence exclusion or stay-away conditions.
“(3)(A) Successful completion of no less than one year of
a child abuser’s treatment counseling program approved by the
probation department. The defendant shall be ordered to begin
participation in the program immediately upon the grant of
probation. The counseling program shall meet the criteria
specified in Section 273.1. The defendant shall produce
documentation of program enrollment to the court within 30 days
of enrollment, along with quarterly progress reports.
“(B) The terms of probation for offenders shall not be
lifted until all reasonable fees due to the counseling program
have been paid in full, but in no case shall probation be
extended beyond the term provided in subdivision (a) of Section
1203.1. If the court finds that the defendant does not have the
ability to pay the fees based on the defendant’s changed
circumstances, the court may reduce or waive the fees.
“(4) If the offense was committed while the defendant was
under the influence of drugs or alcohol, the defendant shall
abstain from the use of drugs or alcohol during the period of
probation and shall be subject to random drug testing by his or
her probation officer.
“(5) The court may waive any of the above minimum
conditions of probation upon a finding that the condition would
not be in the best interests of justice. The court shall state
on the record its reasons for any waiver.” (Stats. 1997,
ch. 134, § 2 (Assem. Bill No. 273).)
17
thus, his conviction under section 273a should be reversed.
We
disagree.
Generally, prosecutors may elect to proceed under either of
two statutes that proscribe the same conduct.
(Mitchell v.
Superior Court (1989) 49 Cal.3d 1230, 1250 (Mitchell).)
Defendant cites inter alia People v. Jenkins (1980) 28
Cal.3d 494, 501-502 (Jenkins), for the proposition that
(1) where a general statute standing alone would include the
same matter as a special statute, and thus conflict with it, the
special act will be considered as an exception to the general
statute, regardless of which was enacted first, and (2) the
prosecution lacks power to prosecute under the general statute
where the alleged facts parallel the acts proscribed by the more
specific statute.
“[W]here [a] general statute standing alone would include
the same matter as [a] special act, and thus conflict with it,
the special act will be considered as an exception to the
general statute whether it was passed before or after such
general enactment.”
(In re Williamson (1954) 43 Cal.2d 651, 654
(Williamson); see also Jenkins, supra, 28 Cal.3d 494, 501 [claim
that the AFDC fraud statute precluded prosecution under perjury
statute rejected based on legislative intent to permit
prosecutions to proceed under either statute]; People v.
Superior Court (Duval) (1988) 198 Cal.App.3d 1121, 1135-1137 [a
consensual act of intercourse alone cannot sustain a former
section 273a, subd. (1) (now section 273a, subd. (a)) charge
18
where section 261.5 (unlawful sexual intercourse) is the
specific statute intended by the Legislature to cover the
conduct and takes precedence]; People v. Hawes (1982) 129
Cal.App.3d 930, 936-941 [intoxication by a public officer (Gov.
Code, § 3001), a special statute, evinces a legislative intent
that it be treated as a distinct form of misconduct, rather than
as charged, willful or corrupt misconduct in office (Gov. Code,
§ 3060)].)
“The doctrine that a specific statute precludes any
prosecution under a general statute is a rule designed to
ascertain and carry out legislative intent.
[Fn. omitted.]
The
fact that the Legislature has enacted a specific statute
covering much the same ground as a more general law is a
powerful indication that the Legislature intended the specific
provision alone to apply.
Indeed, in most instances, an overlap
of provisions is determinative of the issue of legislative
intent and ‘requires us to give effect to the special provision
alone in the face of the dual applicability of the general
provision . . . and the special provision. . . .’
[Citation.]”
(Jenkins, supra, 28 Cal.3d 494, 505-506.)
However, the rule precluding prosecution under a general
statute “is not one of constitutional or statutory mandate, but
serves as an aid to judicial interpretation when two statutes
conflict.
[Citation.]”
(People v. Walker (2002) 29 Cal.4th
577, 586 (Walker), citing Williamson, supra, 43 Cal.3d 651,
654.)
Moreover, the California Supreme Court has explained that
19
“Jenkins, supra, 28 Cal.3d 494, 501-505--merely stand[s] for the
proposition that when the Legislature has enacted a specific
statute addressing a specific matter, and has prescribed a
sanction therefor[e], the People may not prosecute under a
general statute that covers the same conduct, but which
prescribes a more severe penalty, unless a legislative intent to
permit such alternative prosecution clearly appears.”
(Mitchell
v. Superior Court, supra, 49 Cal.3d 1230, 1250.)
Mitchell observed “‘Typically the issue whether a special
criminal statute supplants a more general criminal statute
arises where the special statute is a misdemeanor and the
prosecution has charged a felony under the general statute
instead.
[Citations.]
Such prosecutions raise a genuine issue
whether the defendant is being subjected to a greater punishment
than specified by the Legislature, and the basic question for
the court to determine is whether the Legislature intended that
the more serious felony provisions would remain available in
appropriate cases.’
[Citation.]”
(Mitchell, supra, 49 Cal.3d
at p. 1250, fn. 14.)
The general/special statute rule does not apply in this
case, because the general statute, section 273a, does not
provide a more severe penalty than the special statute, section
273d.
The penalties for felony violation of section 273a and
section 273d are the same (including a term of two, four, or six
years in state prison), with the following exceptions:
20
1.
Where probation is granted for violation of section
273a, the minimum period of probation is 48 months, whereas the
minimum period of probation for violation of section 273d is 36
months;
2.
Violation of section 273d can result in imposition of a
$6,000 fine, in addition to imprisonment, whereas that fine is
not available for violation of section 273a;
3.
A defendant convicted of violating section 273d may be
subject to a four-year enhancement for a prior conviction of
that offense; there is no similar enhancement provision in
section 273a.
(See fns. 6 & 7 at pp. 15-17, ante.)
Thus, on the one hand, section 273a provides a more severe
penalty because it requires one more year of probation than
section 273d.
On the other hand, section 273d provides a more
severe penalty in that it allows imposition of a $6,000 fine and
for imposition of a four-year enhancement for a prior
conviction.
In our view, these competing provisions are a wash;
it is difficult to say that either section 273a or section 273d
imposes the more severe penalty.
If anything, section 273d
would appear to impose the more severe penalties.
Certainly
there is nothing in the sentencing schemes of these two statutes
approaching the felony/misdemeanor distinction that is the
“[t]ypical[]” case calling for exclusive application of a
special statute.
(See Mitchell, supra, 49 Cal.3d 1230, 1250,
fn. 14.)
21
Moreover, keeping in mind that the question is one of
legislative intent (Walker, supra, 29 Cal.4th 577, 586), we
cannot believe the Legislature intended to force prosecutors to
elect between these two statutes.
“Violation of section 273a, subdivision (a) ‘“can occur in
a wide variety of situations:
the definition broadly includes
both active and passive conduct, i.e., child abuse by direct
assault and child endangering by extreme neglect.”
[Citation.]
. . . Section 273a[, subdivision (a)] is “intended to protect a
child from an abusive situation in which the probability of
serious injury is great.”
[Citation.]
“[T]here is no
requirement that the actual result be great bodily injury.”
[Citation.]’
784.)
[Citation.]”
(Valdez, supra, 27 Cal.4th 778,
Section 273d, however, requires the defendant to inflict
a cruel or inhuman corporal punishment or injury upon a child
and the actual result is an injury resulting in a traumatic
condition.
(Fn. 7 at pp. 16-17, ante.)
Thus, CALJIC No. 9.36 describes “traumatic condition” as “a
condition of the body, such as a wound or external or internal
injury, whether of a minor or a serious nature, caused by a
physical force.
“‘Corporal punishment’ is that administered to the body.
“In order to prove this crime, each of the following
elements must be proved:
“1.
A person willfully inflicted cruel or inhuman
punishment or an injury upon the body of a child; and
22
“2.
The infliction of this punishment or this injury
resulted in a traumatic condition.”
(See People v. Thomas
(1976) 65 Cal.App.3d 854, 857.)
There are many cases in which a prosecutor may be in doubt
whether he or she can prove infliction of an injury resulting in
a traumatic condition.
Surely the Legislature did not intend
that prosecutors must elect prosecution under section 273d, to
be greeted by an acquittal (and a double-jeopardy bar to further
prosecution) if the proof fails on this element.
Or, if the
doubtful prosecutor prosecutes under section 273a, and the
evidence in fact shows injury resulting in a traumatic
condition, the People are then greeted by an argument on appeal
that, in hindsight, the prosecutor should have prosecuted
exclusively under section 273d.
this case.
That is what is going on in
We will not attribute this nonsensical gamesmanship
to the Legislature.
Rather, the context of these two statutes
tenders a “powerful indication” of legislative intent that the
prosecutor retains a traditional discretion to prosecute under
either statute.
(See Jenkins, supra, 28 Cal.3d 494, 502;
Mitchell, supra, 49 Cal.3d 1230, 1252.)
The prosecutor could properly elect to prosecute this case
under section 273a rather than section 273d.
Defendant’s
contention to the contrary is not meritorious.
IV
We note an error in the preparation of the abstract of
judgment.
The counts are transposed.
23
It should be 2A for
violation of section 273(a), subdivision (a) and 1B for
violation of section 243, subdivision (d).
We will order the
abstract corrected accordingly.
DISPOSITION
The judgment is affirmed.
The trial court is directed to
prepare a corrected abstract of judgment to reflect 2A for
violation of section 273a, subdivision (a) and 1B for violation
of section 243, subdivision (d) and to forward a certified copy
of the corrected abstract to the Department of Corrections.
SIMS
We concur:
DAVIS
, J.
NICHOLSON
, J.
24
, Acting P.J.