Sue Hartigan <[EMAIL PROTECTED]> writes:
Hi Ron:
This is the original question that Dr. L. and I are researching. I will
also send the newspaper article to go with this.
>
> Here is the Supreme Court decision. What it comes down to is: "A
> pregnant woman is not a "mother" and a fetus is not a "child" as those
> terms are used in that section. Accordingly, the section had no
> application to the defendant. The judgment on count one must be
> reversed."
>
> But the civil law is: "43.1. A child conceived, but not yet born, is
> deemed an existing
> person, so far as necessary for the child's interests in the event of
> the child's subsequent birth."
>
> That is where Dr.L. and I are having the problem and need the help.
>
> Thanks everyone, it really is appreciated.
>
> Sue
>
>
> Filed 3/10/98
> CERTIFIED FOR PARTIAL PUBLICATION*
>
> COURT OF APPEAL, FOURTH DISTRICT
>
> DIVISION TWO
>
> STATE OF CALIFORNIA
>
> THE PEOPLE, Plaintiff and Respondent,v.BRANSON S. WARD,
> Defendant and
> Appellant. E019418 (Super.Ct.No. CR68478) O P I N I O N
>
> APPEAL from the Superior Court of Riverside County. W. Charles Morgan,
> Judge. Reversed in part and affirmed in part. Diane Nichols, under
> appointment by the Court of Appeal, for Defendant and Appellant.
> Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant
> Attorney General, Gary W. Schons, Senior Assistant Attorney General,
> Raquel M. Gonzalez, Supervising Deputy Attorney General, and Lilia E.
> Garcia, Deputy Attorney General, for Plaintiff and Respondent.
>
> Penal Code section 273.5 provides that any person who willfully
> inflicts corporal injury resulting in a traumatic condition upon "any
> person who is the mother or father of his or her child" is guilty of a
> felony. Does that statute apply to a man who has inflicted the
> proscribed injury upon a woman who is pregnant with his unborn child?
> We hold that it does not.
>
> FACTUAL AND PROCEDURAL BACKGROUND
> Thea Airrington lived in an apartment in Riverside with her
> grandmother. The defendant, Airrington�s boyfriend, moved in with her
> in November of 1995. The following month, they conceived a child.
> Suspecting that the defendant was being unfaithful to her, Airrington
> broke off their relationship in February of 1996 and moved his
> belongings out of the apartment.
> On March 12, 1996, when Airrington was three to three and one-half
> months pregnant, the defendant went to the apartment to talk to her. An
> argument ensued which quickly degenerated into a physical altercation,
> during which the defendant grabbed her arms, pushed her down, grabbed
> her by the hair and slammed her head into the closet door, slapped her,
> and squeezed her neck. He left after Airrington�s grandmother called
> the police. As a result, Airrington suffered red marks on her neck,
> pains in her back, neck, and stomach, bruises, and a lump on the back of
> her head.
> In a three-count information, the defendant was charged with inflicting
> corporal injury in violation of section 273.5; with committing an
> assault on Airrington by means of force likely to produce great bodily
> injury, in violation of section 245, subdivision (a)(1); and using force
> and violence upon the person of Airrington�s grandmother, in violation
> of section 242. The information also alleges that the defendant had
> suffered a prior conviction of a serious and violent felony.
> Prior to trial, the defendant moved to set aside the information
> pursuant to section 995 on the ground, inter alia, that a fetus is not a
> child. That motion was denied. At the conclusion of the prosecution�s
> case at trial, the defendant moved for a judgment of acquittal on the
> same ground. (� 1118.1.) That motion was also denied.
> The jury found the defendant guilty of all three offenses as charged.
> Thereafter, the defendant admitted the allegation of a prior
> conviction. As the principal term, the trial court selected the second
> count, regarding assault by means of force likely to result in great
> bodily injury. (� 245, subd. (a)(1).) The court imposed the middle
> term of three years, which was doubled to six years as the result of the
> defendant�s prior "strike." (� 667, subd. (e)(1).) The sentence on
> count one, for the violation of section 273.5, was also set at the
> midterm and also doubled, but stayed pursuant to section 654. On count
> three, the battery charge, the defendant was sentenced to six months, to
> be served concurrently with the other charges.
>
> CONTENTIONS
> The defendant contends that section 273.5 does not apply, that the
> trial court committed prejudicial error by admitting evidence of a prior
> uncharged assault and by failing to instruct the jury concerning the
> weight to be given to expert testimony, and that the use of CALJIC No.
> 2.90 deprived him of due process. We find merit only in his first
> contention.
> DISCUSSION
> A. PENAL CODE SECTION 273.5 DOES NOT APPLY TO PROSPECTIVE
> PARENTS OF UNBORN CHILDREN.
> At one time, section 273.5, subdivision (a), applied only to the abuse
> of spouses and cohabitants. (Stats. 1987, ch. 415, � 2, p. 1575.)
> However, the Legislature amended the statute in 1988 by adding a third
> class of protected persons: "Any person who willfully inflicts upon his
> or her spouse, or any person who willfully inflicts upon any person of
> the opposite sex with whom he or she is cohabiting, or any person who
> willfully inflicts upon any person who is the mother or father of his or
> her child, corporal injury resulting in a traumatic condition, is guilty
> of a felony . . . ." (Stats. 1988, ch. 576, � 1, p. 2127.) Here, the
> case was argued and the jury was instructed solely in terms of the third
> alternative. Therefore, the issue is whether a woman carrying a fetus
> is a "mother" of a "child," as those words are used in the statute.
> Our primary task in interpreting a statute is to determine the
> Legislature�s intent so as to effectuate the purpose of the law.
> (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826; Fontana Unified School
> Dist. v. Burman (1988) 45 Cal.3d 208, 218.) Because the statutory
> language itself is the best indicator of that intent, we start with an
> examination of the words of the statute. (Adoption of Kelsey S., supra,
> p. 826.) If the Legislature has expressly defined a term, we must
> apply that definition. (Ibid.)
> Section 273.5 does define "mother:" "For the purposes of this section,
> a person shall be considered the father or mother of another person�s
> child if the alleged male parent is presumed the natural father under
> Section 7611 and 7612 of the Family Code." (� 273.5, subd. (d).) But
> the birth of a child is an essential prerequisite of each of the five
> presumptions stated in Family Code section 7611, and section 7612 only
> deals with rebutting those presumptions. Under those Family Code
> provisions, therefore, a man cannot be the presumed father of a fetus.
> By incorporating those provisions, the definition of "mother" in
> subdivision (d) of section 273.5 excludes pregnant women. Accordingly,
> the enhanced penalties prescribed by section 273.5 cannot apply to
> battery of a pregnant woman, even though the fetus she is carrying was
> conceived through sexual intercourse with the batterer.
> We reach the same result by analyzing the meaning of "child." In the
> absence of a statutory definition, words should be given their usual and
> ordinary meanings. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363,
> 376; Fontana Unified School Dist. v. Burman, supra, 45 Cal.3d at p.
> 218.) In this case, however, resorting to the common meaning of the
> word does not indicate the Legislature�s intent, because "child" has no
> fixed, single meaning. Depending on the context, it can refer to a
> fetus, a baby, a young person between infancy and youth, a minor, or a
> descendant of any age. (See, e.g., Webster�s New Internat. Dict. (3d
> ed. 1964) p. 388.) For that reason, this court has previously
> recognized that, "[a]s respects the question whether it was meant to
> refer to an unborn child, the statutory use of the word �child� is at
> best ambiguous." (Reyes v. Superior Court (1977) 75 Cal.App.3d 214,
> 217.)
> While there is no statutory definition of "child," the Legislature has
> defined "minor" to mean "an individual who is under 18 years of age.
> The period of minority is calculated from the first minute of the day on
> which the individual is born to the same minute of the corresponding day
> completing the period of minority." (Fam. Code, � 6500.) A fetus,
> therefore, is not a "minor." In determining the meaning of "child" as
> used in section 273d, which proscribes the willful infliction "upon a
> child [of] any cruel or inhuman corporal punishment or injury resulting
> in a traumatic condition," "child" and "minor" have been held to be
> synonymous. (People v. Thomas (1976) 65 Cal.App.3d 854, 858.)
> Therefore, a fetus is not a "child."
> We reached that same conclusion over 20 years ago in Reyes v. Superior
> Court, supra. There, a pregnant heroin addict had been warned that use
> of heroin during her pregnancy would endanger her fetus. Nevertheless,
> the woman continued to use heroin, with the result that she gave birth
> to twin boys who were addicted to heroin and who suffered withdrawal.
> She was convicted of violating 273a, former subdivision (1) (now, subd.
> (a)), which punishes willful conduct which causes physical pain or
> mental suffering to a child or which endangers a child�s person or
> health. (75 Cal.App.3d at p. 216.) On appeal, we held "that the word
> �child� as used in Penal Code section 273a, subdivision (1) was not
> intended to refer to an unborn child and that petitioner�s prenatal
> conduct does not constitute felonious child endangering within
> contemplation of the statute." (Ibid.)
> That exclusion of fetuses is consistent with the general rule regarding
> the scope of "child" in California law. "�[T]here are major and
> decisive areas where the embryo and fetus are not treated as equivalent
> to the born child.� Indeed, such equivalence is the exception rather
> than the rule." (Justus v. Atchison (1977) 19 Cal.3d 564, 577, quoting
> People v. Belous (1969) 71 Cal.2d 954, 968.) "[I]n the limited
> instances in which the Legislature has extended the protection of the
> criminal law to the unborn child, it has specially identified the object
> of its concern." (Justus, p. 578.) For instance, when proscribing the
> willful and unexcused failure to provide a child with clothing, food,
> shelter, and medical care, section 270 specifically provides that "[a]
> child conceived but not yet born is to be deemed an existing person
> insofar as this section is concerned." Without that language, the
> statute would not apply to neglect of an unborn child. (Justus, p. 578;
> People v. Yates (1931) 114 Cal.App.Supp. 782, 785.)
> In its 1988 amendment to section 273.5, the Legislature referred to a
> "child" without adding any language to suggest that, contrary to the
> general rule, that term should be interpreted to include a fetus. In
> the absence of such qualifying language, the term "impliedly but plainly
> excludes unborn children." (Reyes v. Superior Court, supra, 75
> Cal.App.3d at p. 219.)
> Quoting People v. Mora (1996) 51 Cal.App.4th 1349, at page 1355, for
> the proposition that "[t]he overriding purpose of section 273.5 is to
> deter domestic violence," the People argue that an interpretation
> excluding "fetus" from the definition of "child" would be contrary to
> that legislative purpose. They are mistaken. "�Domestic violence�
> means abuse committed against an adult or a fully emancipated minor who
> is a spouse, former spouse, cohabitant, former cohabitant, or person
> with whom the suspect has had a child or is having or has had a dating
> or engagement relationship." (� 13700, subd. (b).) That statutory
> definition encompasses violence between individuals within a broad range
> of relationships. Had the Legislature intended section 273.5 to punish
> or deter all domestic violence, it could have simply referred to or
> copied the broad definition in section 13700. Instead, the Legislature
> chose to restrict additional punishment to violence occurring in a much
> narrower range of relationships. Thus, while the purpose of section
> 273.5 is to deter violence within particular relationships, it is
> clearly not designed to deter domestic violence in all the relationships
> in which it may occur. The relationship here is within section 13700�s
> definition of domestic violence, but it is not one of the relationships
> specified in section 273.5.
> Moreover, the legislative history of the 1988 amendments to section
> 273.5, by which the reference to the parents of a child were added, does
> not indicate that one of the purposes of the amendment was to discourage
> violence in the relationship between a pregnant woman and the estranged
> boyfriend who impregnated her. To the contrary, the reason for the
> amendment was to extend the scope of the statute to those former couples
> "�who have a child in common�" because "�[c]ustody, visitation, and
> decisions regarding the raising of children are the frequent sources of
> violent incidents between separated parents.�" (Assem. Com. on Public
> Safety, Analysis of Assem. Bill 4348 (1987-1988 Reg. Sess.), quoting the
> proponent of the bill, the Los Angeles City Attorney.) Custody,
> visitation, and child-raising are not issues which arise regarding a
> fetus.
> The People also argue that it is anomalous to impose additional
> punishment for violence inflicted on the mother of a newborn baby but
> not for violence against a woman in the ninth month of her pregnancy.
> We disagree. The Legislature appears to have distinguished currently
> existing relationships (i.e., those between spouses, cohabitants, or
> parents of an existing child) from former or potential relationships
> (those between former spouses, former cohabitants, or expectant
> parents).
> In effect, the People argue that there is no good reason for the
> Legislature to have excluded a pregnant woman bearing a fetus conceived
> by her batterer from whatever additional protection section 273.5
> provides over other forms of battery. They may be correct, and the
> Legislature may wish to revisit the issue. However, it is not within
> our purview to express an opinion on such a purely legislative
> question. Uncertainty as to the reason for the distinction that the
> Legislature drew is not the same as uncertainty as to whether a
> distinction was drawn at all. Our role is only to determine whether a
> distinction exists, not to judge the wisdom of that distinction.
> Even if we were to express an opinion that section 237.5 should be
> changed in some fashion, we would nevertheless be bound by the language
> of the statute as it exists today. By virtue of the separation of
> powers prescribed by the California Constitution, courts are not
> empowered to rewrite statutes. (See Kopp v. Fair Pol. Practices Com.
> (1995) 11 Cal.4th 607, 673 (conc. opn. of Mosk, J.).) We would be
> engaging in judicial activism were we to "ignore the language employed
> by the Legislature merely because of a subjective evaluation that a
> differently worded statute would more effectively achieve the statutory
> goal." (Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047,
> 1071, fn. 20.)
> In summary, the 1988 amendments to section 237.5 protect those persons
> whose past intimate relations resulted in the birth of a child."
> (People v. Mora, supra, 51 Cal.App.4th at p. 1355.) A pregnant woman is
> not a "mother" and a fetus is not a "child" as those terms are used in
> that section. Accordingly, the section had no application to the
> defendant. The judgment on count one must be reversed.
>
> B. ANY ERROR IN ADMITTING EVIDENCE OF THE PRIOR
> UNCHARGED ASSAULT WAS HARMLESS.
> Prior to trial, the People moved for a ruling on whether evidence of a
> prior, uncharged assault by the defendant upon Airrington would be
> admissible. The defendant objected on the grounds that the evidence
> would be irrelevant to either intent or motive (Evid. Code, � 350), and
> alternatively that if it was somewhat relevant, its probative value was
> outweighed by the likelihood of prejudice (id., � 352). The trial court
> ruled that the evidence would be admissible on the issue of motive but
> not intent. It did not explicitly address the prejudice objection.
> On appeal, the defendant contends that the trial court abused its
> discretion both in determining that the evidence was relevant and by
> impliedly deciding that the probative value of the evidence outweighed
> its potential prejudice. The People respond that the defendant�s
> relevancy objection was not sufficiently specific to preserve that issue
> for appeal, that the evidence was admissible under both Evidence Code
> sections 1101, subdivision (b), and 1109, and that the trial court did
> not abuse its discretion under Evidence Code section 352.
> We need not resolve any of these issues because any error was
> harmless. Evidence that a person has a motive to commit a particular
> criminal act tends to prove that the person did commit that act. Here,
> there was no issue of mistaken identity. The sole question was whether
> the act occurred at all, i.e., whether Airrington was actually
> assaulted. On that question, the evidence was one-sided. She testified
> to that fact. Her grandmother testified to having witnessed the
> assault. And the investigating police officer corroborated their
> testimony by testifying to having seen Airrington crying and having
> examined the red marks on her neck and the lump on her head. There is
> no evidence that those events did not occur or that those injuries are
> attributable to some other cause. There is no reasonable probability
> that, absent the evidence of the prior uncharged incident, the jury
> would have answered that question differently.
>
> C. THE TRIAL COURT�S ERRONEOUS FAILURE TO INSTRUCT ON
> THE WEIGHT TO BE GIVEN TO EXPERT TESTIMONY IS
> HARMLESS.
> Section 245, subdivision (a)(1), prescribes the punishment for "[a]ny
> person who commits an assault upon the person of another . . . by any
> means of force likely to produce great bodily injury . . . ." As
> discussed above, there was evidence that the defendant assaulted
> Airrington, inter alia, by choking her and by slamming her head against
> a closet door. Regarding the choking, a forensic pathologist testified
> that, by grabbing a person around the neck and choking that person for
> several seconds, "it is possible" to cause serious bodily injury to that
> person, even if the choking leaves no marks or injuries on the outside
> of the neck. In closing argument, the prosecutor told the jury that
> they could rely on either the choking or the hitting of the victim�s
> head into the door to establish that the force used was likely to result
> in great bodily injury.
> The defendant does not contest the sufficiency of the evidence to
> establish that the force he employed in assaulting Airrington was likely
> to produce great bodily injury. Instead, he contends that the jury was
> not properly instructed. He notes that although the trial court is
> statutorily required to instruct the jury that it was not bound to
> accept the opinion of an expert witness (� 1127b), the trial court
> failed to do so. He concludes that the omission deprived him of his
> "right to a jury trial as to the assault charge, because it removed from
> their consideration the element whether the assault was committed by
> means of force likely to produce great bodily injury." He is mistaken.
> A trial court has a duty to instruct sua sponte on the general
> principles of law relating to the evaluation of evidence. (People v.
> Daniels (1991) 52 Cal.3d 815, 884.) Accordingly, "[t]he instruction
> called for by Penal Code section 1127b must be given sua sponte where
> expert testimony has been received." (People v. Reeder (1976) 65
> Cal.App.3d 235, 241.) However, the erroneous failure to instruct on the
> weight of expert testimony is not reversible per se. (Ibid.) Instead,
> the omission is prejudicial only if the reviewing court, upon an
> examination of the entire cause, determines that it is reasonably
> probable that the jury would have rendered a verdict more favorable to
> defendant had the instruction required by Penal Code section 1127b been
> given. (Id., pp. 241, 243.)
> Although it is undisputed that the trial court erred by failing to
> instruct the jury in the language of either section 1127b or CALJIC No.
> 2.80, that omission has not been shown to have been prejudicial. The
> issue before the jury was whether the defendant exerted force likely to
> result in great bodily injury. The pathologist was not asked and did
> not address the issue of whether choking was likely to cause great
> bodily injury, only whether it was possible for choking to cause it.
> Therefore, even if the jury improperly accepted the expert�s opinion at
> face value without critically analyzing it, that opinion did not resolve
> the issue before them.
> Moreover, the jury did not need to rely upon the fact that the
> defendant choked the victim to establish that he employed force likely
> to produce great bodily harm. Airrington testified that the defendant
> grabbed her hair on both sides of her head and repeatedly slammed the
> back of her head against a closet door. In other circumstances, the use
> of an empty tin beer can, or even of hands or fists alone, have been
> held sufficient to support a conviction of assault by means of force
> likely to produce great bodily injury. (People v. Fierro (1991) 1
> Cal.4th 173, 251, fn. 27; People v. Hahn (1956) 147 Cal.App.2d 308,
> 310-312.) The jury could have easily concluded that the use of a door
> was also likely to produce great bodily harm, i.e., "significant or
> substantial bodily injury or damage . . . ." (CALJIC No. 9.02.)
>
> D. CALJIC NO. 2.90 ACCURATELY DESCRIBES THE PROSECUTION�S
> BURDEN OF PROOF.
> Finally, the defendant asserts that the reasonable-doubt instruction
> given to the jury, the revised version of CALJIC No. 2.90, "deprived
> [him] of due process of law guaranteed him by the 14th Amendment of the
> United States Constitution which prevents convictions except upon proof
> beyond a reasonable doubt." As the defendant concedes, numerous courts
> have rejected that contention. (See, e.g., People v. Godwin (1996) 50
> Cal.App.4th 1562, 1571-1572.) The People�s brief adds even more to the
> list.
> We see no reason to disagree with the analysis of those cases. "In
> Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 583, 114 S.Ct. 1239],
> while criticizing the �moral certainty� language then contained in
> CALJIC No. 2.90, the United States Supreme Court stated that �[a]n
> instruction cast in terms of an abiding conviction as to guilt, without
> reference to moral certainty, correctly states the government�s burden
> of proof.� (511 U.S. at p. ___ [127 L.Ed.2d at p. 596].) Additionally,
> in People v. Freeman (1994) 8 Cal.4th 450, 504, fn. 9 [citations], the
> California Supreme Court recommended trial courts delete the �moral
> certainty� language from CALJIC No. 2.90 and use the exact definition of
> reasonable doubt which the trial court here used." (People v. Torres
> (1996) 43 Cal.App.4th 1073, 1078.) We shall follow the statements in
> Victor v. Nebraska and People v. Freeman, approving of the approach
> taken by the revision to CALJIC No. 2.90, until the authoring courts
> tell us otherwise.
> DISPOSITION
> That portion of the judgment convicting the defendant of Piolating
> Penal Code section 273.5 in count one of the information is reversed.
> With that exception, the
> judgment is affirmed. The trial court shall prepare and promulgate a
> corrected abstract of judgment.
> CERTIFIED FOR PARTIAL PUBLICATION.
> McKINSTER ,Acting P. J.
> We concur: WARD, J. GAUT, J.
--
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