Elder/Child Abuse, Domestic Violence
Category > Elder/Child Abuse, Domestic Violence
Updated 3/6/2024Nonfeasance by social workers did not support a felony child abuse charge after the boy died as a result of neglect and a head injury delivered by his mother. Defendants were social workers with the Los Angeles County Department of Children and Family services. They provided emergency and maintenance services to a seven year-old and members of his family. Six weeks after DCFS closed its case, the boy died as a result of child neglect and a head injury caused by his mother. Defendants were charged with felony child abuse under Penal Code section 273a, and for falsifying public records under Government Code section 6200. However, the defendants never had the legal duty to control the abuser, and did not have care of the boy for purposes of section 273a. Moreover, defendants were not officers within the meaning of section 6200. The charges were dismissed. id: 26603
Updated 3/6/2024The trial court erred in issuing temporary restraining orders without notice to the defendant given the absence of an emergency.The sexual batteries were alleged to have occurred on September 7, 2018, yet the prosecution did not seek temporary restraining orders until November 13, 2018. Because there was no evidence of an urgency and the prosecution made no attempt to give defendant prior notice of an intent to seek a temporary restraining order, the court erred in issuing the orders without notice.id: 26604
Updated 2/1/2024Evidence did not support the conviction for domestic battery with a prior where the prior was an attempt.The evidence was insufficient to support defendant’s conviction for domestic battery with a prior under Penal Code section 273.5(f)(1) because the only relevant prior conviction was for attempted domestic battery.id: 27953
Updated 2/1/2024The trial court erred by imposing a postconviction protective order for a defendant who was not convicted of domestic violence offenses.The trial court erred by imposing a 10-year postconviction protective order pursuant to Penal Code section 136.2(i)(1) because that option only exists for defendants who are convicted of domestic violence offenses. Defendant was convicted of robbery and assault, which are not domestic violence offenses.id: 27955
Updated 2/1/2024Simple assault is a lesser included offense of infliction of corporal injury.Defendant’s conviction for misdemeanor assault under Penal Code section 240 had to be reversed because it was a lesser included offense of his conviction for inflicting corporal injury resulting in a traumatic condition under section 273.5.id: 27977
The trial court abused its discretion by admitting a prosecution child abuse expert to provide statistical evidence re false accusations.The trial court erred by admitting the testimony of a prosecution expert on child abuse, Dr. Anthony Urquiza, that studies show only four percent of child abuse allegations are false. The testimony had the effect of telling the jury there was at least a 96 percent chance that the child who claimed to have been abused was telling the truth. The testimony improperly invaded the province of the jury, but the error was harmless where the defense rebutted the statistical evidence through its own expert.id: 26121
Child abuse under section 273a can only be imposed on someone who permits abuse where that person has a legal duty to exert control over the actual abuser.Defendant was convicted of child abuse under Penal Code section 273a. She argued the provision was unconstitutionally vague if it allowed a conviction for someone who “permits” a child to suffer injury at the hands of another. The portion of section 273a that imposes criminal penalties on noncaretakers who “willfully permit” the requisite injury on a victim is limited to those persons who had an affirmative duty, under statutory or common law principles, to exert control over the actor who caused or directly inflicted the injury on the victim.id: 24882
The trial court erred by imposing an enhancement under section 273.5, subd. (f)(1) that had not been pled in the information.Defendant was charged with, and convicted of, two counts of corporal injury to a cohabitant in violation of Penal Code section 273.5, subd.(a). That provision carries a sentence range of two, three, or four years. The information also included a special allegation under section 273.5, subd. (h)(1) that provided for an additional 15 days on each count. The sentencing court (at the prosecution’s request) erred by imposing a longer term under section 273.5, subd. (f)(1), an enhancement (or an alternative sentencing provision) that was never pled despite the prosecutor’s claim that there was proof to support it. The sentence under that provision violated defendant’s due process rights.id: 25278
The trial court lacked the authority to issue a no-contact protective order as to defendant’s children who were not victims of his domestic violence offense. Defendant was convicted of corporal injury to a cohabitant. The trial court thereafter issued a protective order forbidding him to contact his son or stepdaughter for the next 10 years, except through counsel. However, that part of the protective order was vacated because his son and stepdaughter were not victims within the meaning of Penal Code section 136.2, subd.(i)(1) and 273.5, subd.(j). id: 23627
The trial court erred by failing to instruct on evidence of intimate partner abuse in deciding whether defendant formed the requisite specific intent. Defendant was charged with several offenses involving a robbery/carjacking/kidnapping incident. The trial court erred by failing to properly instruct the jury that it could consider evidence of intimate partner battering in determining whether she formed the requisite specific intent for the charged crimes. However, the error was harmless as defendant failed to show the probability of a better outcome if the jury had been properly instructed. id: 23673
Defendant’s elder fraud/theft conviction was reversed where he sold an older woman an annuity policy she did not understand but where there was no evidence that he intended to hurt her or benefit himself.Defendant, an insurance broker, was convicted of theft from an elder and dependent adult by selling her an annuity policy the prosecutor argued was an unsuitable product for her age despite its approval for sale to such a person by the California Department of Insurance. While there was evidence that the woman may not have understood the transaction, there was no evidence defendant appropriated the funds for his own use or that he made any misrepresentations initially. Moreover, the trial court erred by failing to instruct the jurors on the need to find defendant intended to deprive the elder of a major part of the value or enjoyment of her property. Defendant’s conviction for violating Penal Code section 368, subd.(d) was reversed.id: 23357
The trial court erred by failing to instruct that the parental discipline defense applied to the assault count involving defendant’s son.Defendant was charged with assault and felony child abuse. The trial court erred by failing to instruct sua sponte on the defense of the parental right to employ reasonable discipline with respect to the assault count involving his son. However, since the jury necessarily rejected the claim of justifiable discipline in connection with the child abuse count, any error in failing to give the instruction for the assault was harmless.id: 22506
Self-defense can be a defense to direct child abuse charged under the third branch of Penal Code section 273a. The trial court erred by instructing on self-defense with respect to the felony assault but refusing to so instruct in connection with felony child abuse. Self-defense can be a defense to direct child abuse. The parental discipline instruction given by the trial court did not substitute for the concepts related to the defense of self-defense.id: 22505
The evidence did not show defendant’s group known as the Small Town Peckerwoods were a street gang because there was insufficient evidence connecting them to the larger Peckerwood gang.Evidence was insufficient to support the gang activity special circumstance (Penal Code section 190.2, subd.(a) 22) and the active participation in a street gang count under section 186.22, subd.(a) because it was never established that defendant’s small group known as the Small Town Peckerwoods constituted a criminal street gang. While there was a larger group known as the Peckerwoods which was a street gang, there has to be something more than a shared ideology or philosophy or a common name before multiple units can be treated as a whole for this purpose. There was an insufficient connection between the two groups to show defendant’s group was a street gang. id: 20622
Elder abuse conviction against the victim's daughter was reversed as she had no duty to control her caretaker brother who abused the victim through inaction.Defendant knew her aged and disabled father was living in her brother's home under conditions that were painful and degrading. He died at home under very unsanitary conditions. She was convicted of elder abuse pursuant to Penal Code section 368, subdivision (a) as she was found to have a duty to act based on the special parent/child relationship. However, in order for the statute to avoid constitutional vagueness problems it must be interpreted to apply only to a person who, under existing tort principles, has a duty to control the conduct of the person who is inflicting abuse on the elder or dependent adult. Because defendant had no duty to control the conduct of her brother, she was improperly charged with a violation of section 368(a).id: 10504
Spousal abuse statute does not apply to prospective parents of unborn children.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. The statute does not apply to a man who has inflicted the proscribed injury upon a woman who is pregnant with his unborn child.id: 15504
Willfulness is an element of the offense of failing to provide a child with lifes necessities.Penal Code section 270 makes it a misdemeanor for the parent of a child to willfully omit, without lawful excuse to provide the necessities of life to a child. The statute says that proof of the parents failure to provide the required care is prima facie evidence that the failure to provide was willful. Willfulness is an element of the offense which must be proved by the prosecution. It is not, as argued by the prosecutor, an affirmative defense.id: 15513
The trial court erred in failing to instruct on misdemeanor elder abuse where the jury could have found the stun gun incident was not likely to cause great bodily injury or death. Defendant "zapped" a 74 year-old victim in the leg with a stun gun and chased him down the hallway of his house before taking his wallet. The evidence supported a finding of circumstances "likely to produce great bodily harm or death" for purposes of felony elder abuse under Penal Code section 368, subd.(c) where the victim was not hurt and the jury could have
found the conditions were not likely to cause great bodily injury.id: 19516
Theft against an elder conviction was reversed where the instruction given on undue influence permitted persuasion short of coercion. Defendant was convicted of theft against an elder pursuant to Penal Code section 368, subd.(d) and grand theft under section 487, subd.(a). The trial court erred by instructing that the victim's apparent consent to the transactions was ineffective if obtained by the exercise of undue influence since the definition of undue influence given, was little more than over-persuasion. The convictions were reversed where the instructions provided alternate theories for guilt, some of which were legally correct, but it could not be determined which theory the jurors adopted.id: 19311
Updated 3/6/2024Evidence of defendant’s meth possession and use in the home supported the misdemeanor. Evidence that defendant kept and used methamphetamine in a home with a six year-old child and a one-month-old met the standard of placing children in a situation where their health may be endangered. The evidence was sufficient to support the misdemeanor child endangerment conviction under Penal Code sectin 273a.id: 26562
Updated 3/6/2024Evidence of sexual battery against two young females supported the three year restraining order. Evidence that defendant committed sexual battery against two minor females was sufficient to support the three-year restraining order that was imposed as to both alleged victims.id: 26605
Updated 2/26/2024The trial court did not err in instructing the jurors could use the battered woman syndrome expert when evaluating the credibility of the accuser who recanted.The prosecution presented an expert on intimate partner violence. Defendant argued the trial court prejudicially erred in instructing with CALCRIM No. 850 on the use of the expert’s testimony when evaluating the alleged victim’s credibility because it suggested that the charged abuse occurred. However, the expert knew nothing about the facts of the case and testified about battered woman’s syndrome in the abstract. The court did not err in instructing that the jurors could use testimony when evaluating the victim’s believability.id: 26266
Updated 2/26/2024Intimate partner battering instruction did not suggest that if jurors believed the expert they should believe the complaining witness.Defendant was convicted of several crimes involving domestic violence against his ex-wife. The prosecution presented an expert on intimate partner battering who described how victims often cycle back and forth between periods of seeking help from police and of supporting their battering partners, including by making false statements to the police. The instruction given on the subject (CALCRIM No. 850) did not suggest that if the jurors believed the expert they should also believe the complaining witness.id: 26278
Updated 2/7/2024CEO of a residential facility for seniors was properly convicted of elder abuse and involuntary manslaughter where the facility improperly admitted a man with dementia who was killed in traffic.Defendant was the CEO of a residential care facility for the elderly. The facility admitted a resident diagnosed with dementia in violation of its license. The resident wandered around the facility unsupervised, and later ran out onto a busy highway where he was struck by a car and killed. Defendant was convicted of elder abuse and involuntary manslaughter. Evidence supported the finding of proximate cause and criminal negligence needed to support the convictions. Moreover, regulatory requirements did not prevent the facility from restricting the victim’s movements.id: 27154
Updated 2/4/2024Police gave adequate notice of the contents of the DVRO by announcing it at the door.Penal Code section 835(a) provides that a law enforcement officer may enforce a domestic violence restraining order after verifying that it exists and orally informing the restrained person of its contents. Here the defendant was in his mother’s home in violation of a DVRO that had not yet been served. Officers yelled to defendant that there was a restraining order on file, and later forced the door open and arrested him. The officers here gave the defendant adequate notice of the restraining order’s contents.id: 27678
Updated 2/3/2024Defendant’s status as a noncaretaker was not an element of the crime of theft of an elder by a noncaretaker.Defendant was convicted of elder theft as a noncaretaker under Penal Code section 368(d). The trial court did not err in failing to instruct on the need to prove defendant was a noncaretaker, as that status was not an element of the crime.id: 27718
Defendant’s daughter was properly considered to be a victim for purposes of the protective order even though he did not plead guilty to the charge relating to her.Defendant pled guilty to committing a lewd act against his niece, and the similar count involving his daughter was dismissed. The sentencing court imposed a protective order under Penal Code section 136.2 as to both the niece and daughter. Defendant argued his daughter was not a victim because he did not plead guilty to an offense involving her. However, protective orders under section 136.2 are construed broadly to include any individual against whom there is some evidence to show the defendant attempted to harm. Defendant stipulated that the police report could serve as the factual basis for the plea, and given evidence of his acts involving his daughter she was properly included in the protective order.id: 25455
Defendant charged with elder abuse was not entitled to an instruction allowing the jury to consider his alleged mental incompetence because the offense requires only a general criminal intent.Defendant was convicted of elder abuse with force likely to cause great bodily harm or death under Penal Code section 368, subd.(b)(1). He argued the trial court improperly instructed the jury concerning the extent to which it could consider evidence of mental incapacity in determining whether he had the requisite criminal intent. However, the offense requires only a general intent, and there need be no showing of an intent to inflict pain or suffering on an elder or dependant adult.id: 24989
Protective order issued by the court was modified to prevent contact pending a showing that defendant was making progress with anger management and addiction problems.Defendant pled guilty to one count of spousal abuse after punching and choking his wife. At sentencing, over the objections of defendant and the victim, the court imposed a criminal protective order preventing defendant from initiating any contact with the victim for three years. The order was modified to prevent contact pending a showing that he was making progress with his addiction and anger management issues. And the order was modified to allow the victim to initiate contact with the defendant if she wanted to.id: 25442
A person claiming a “good cause” defense to a child custody deprivation charge must still comply with reporting and custody proceeding requirements.Defendant was convicted of child custody deprivation in violation of Penal Code section 278.5. Contrary to defendant’s claim, a defendant who has not complied with the reporting and custody proceeding requirements set forth in section 278.7, subds. (c) and (d) cannot assert a “good cause” defense under subdivision (a).id: 25375
Child custody deprivation is a specific intent crime and the trial court erred by giving the general intent instruction.Defendant was charged with child custody deprivation under Penal Code section 278.5, which makes it a crime to maliciously deprive a lawful custodian of a right of custody or visitation. The offense requires a specific intent and the trial court erred in instructing with CALCRIM No. 250 (general intent) rather than 251. However, the error was harmless given the overwhelming evidence of the required specific intent.id: 25376
The fact that defendant was angry, provoked a fight, and later showed consciousness of guilt was sufficient to show he was not acting in self-defense when he punched the victim.Defendant was convicted of corporal injury to a spouse or roommate. He argued the prosecution failed to present sufficient evidence that he was not acting in self-defense when he punched the victim in the face, breaking her nose and causing her to suffer a concussion. However, evidence that defendant was angry, instigated a physical confrontation, and made statements evincing a consciousness of guilt shortly after the incident all support a finding that he was not acting in self-defense when he punched the victim.id: 25329
The continuous conduct rule applies to dependant adult abuse and no unanimity instruction was required.Defendant argued the trial court erred in failing to give the jury a unanimity instruction relating to the charge of dependant adult abuse under Penal Code section 368, subd.(b)(1). However, no unanimity instruction was required because the offense may involve multiple acts in a continuous course of conduct.id: 21542
Domestic violence protective order properly included defendant’s girlfriend and her son, both of whom were assaulted during the incident. Defendant was convicted of assaulting a woman he had been dating and her son (Craig). At sentencing, the trial court issued a protective order restraining defendant from having contact with both victims. He argued the order was unlawful as to Craig. However, the protective order was authorized under Penal Code section 136.2, subd.(I), which encompasses a person like Craig who was actually assaulted during a domestic violence incident, and who accordingly meets the broad definition of “victim” set forth in the statute. id: 24173
Factual basis of plea shows defendant used force against his spouse during the false imprisonment and that justified the postjudment protective order. Defendant pled no contest to false imprisonment. The trial court imposed a prison term and issued a protective order under Penal Code section 136.2 prohibiting defendant from contacting the victim for five years. The factual basis for the plea established that he restrained his spouse with force or violence. The record therefore supports an implied finding that he committed abuse against his spouse and therefore committed a crime of domestic violence that authorized the protective order.id: 24100
A stipulation to a prior conviction for domestic violence for purposes of Penal Code section 273.5 does not require the court to engage in the advisement and waiver process.The stipulation to the existence of a prior domestic violence conviction was not tantamount to admitting all elements of an enhancement. Rather, the existence of the prior (for purposes of the domestic violence with a prior provision) was a sentencing factor authorizing the trial court to impose a more severe alternative sentencing scheme. As a result, the court was not required to advise defendant of his fundamental trial rights and solicit waivers of them before giving effect to the stipulation. id: 23212
The trial court did not err by failing to instruct that simple assault is a lesser included offense of assault on a child causing death. Defendant’s young son died of shock and hemorrhage due to blunt force trauma. He was convicted of assault on a child causing death in violation of Penal Code section 273ab. Given the measure of force applied by defendant, the trial court did not err by failing to instruct, sua sponte, on simple assault as a lesser included offense.id: 22953
Defendant violated section 273ab (child abuse homicide) even where the victim was older than eight at the time of his death where the assault took place when he was younger than eight.Defendant was convicted of child abuse homicide - inflicting injury on a child under eight years old, which is reasonably likely to cause great bodily injury resulting in death. (Penal Code section 273ab.) The child died more than three years after the assault. Defendant argued that because the victim was older than eight when he died, he did not violate section 273ab as a matter of law. However, the conviction was valid because the victim was younger than eight at the time of the assault.id: 22952
Evidence supported two misdemeanor elder abuse convictions where defendant embezzled money from her grandmother.Defendant argued the evidence was insufficient to support her conviction on the two misdemeanor elder abuse counts. She argued the evidence shows nonfeasance or malfeasance but not criminal conduct. However, the evidence showed that she willfully caused or permitted an elder or dependent adult to suffer, by embezzling money from the victim in two different circumstances and therefore supported both convictions.id: 22623
A defendant’s act of directing a child to pose or model is not an element of the crime of posing or modeling a minor under Penal Code section 311.4(c).Defendant was convicted of posing or modeling two young boys in violation of Penal Code section 311.4, subd.(c). He argued the trial court erred by instructing the jury that the prosecution did not have to prove that he directed the boys when he took images of them. However, a defendant’s act of directing a child to pose or model is not an element of section 311.4, subd.(c).id: 22619
Defendant’s act of throwing his son to the rocky ground was sufficient to support the felony child abuse conviction. Defendant argued the evidence was insufficient to support the felony child abuse conviction because the record lacked any testimony about the degree of force of his son’s impact with the ground, the son testified the slaps did not hurt and the photos showed only scratches without bruising or swelling. However, felony child abuse under Penal Code section 273a does not require force likely to cause great bodily injury. It requires the infliction of injury under circumstances likely to produce great injury. Defendant’s act of throwing his son to the rocky ground involved sufficient force to make great bodily harm likely on impact.id: 22504
Defendant was properly convicted of felony child endangerment where had used large dildos to penetrate the vagina of his nine year old daughter.Defendant argued the evidence was insufficient to support his conviction for felony child endangerment under Penal Code section 273a, subd.(a) because there was no evidence his conduct was likely to cause great bodily harm or death. However, the photographs showed defendant’s nine year-old daughter penetrating herself with large dildos and other photos showed appellant using the dildos on the child. The lack of physical injury was irrelevant since the force used and size of the objections used on the young victim were likely to cause great bodily injury.id: 22314
The minor did not violate the child abuse statute by running over the young child absent evidence that she saw the child, but did violate the provision by failing to alert others of the child’s injuries.The minor was found to have committed child abuse likely to produce great bodily harm in violation of Penal Code section 273a, subd,(a) when she drove her mother’s truck over a 17 month old child, severely injuring him. The court erred by finding the minor violated the statute running over the child because it applied the wrong standard of criminal negligence and there was no evidence that she saw the child or knew of his location before running him over. However, the minor violated the statue when she willfully permitted the child to suffer from injuries resulting from the accident. Even though the court erred in its reasoning, substantial evidence supported the section 273a, subd.(a) finding.id: 22447
Evidence supported the assault on a child causing death conviction where defendant intentionally struck his young son several times in a manner that would lead a reasonable person to realize great bodily injury was likely.Defendant was convicted of assault on a child causing death under Penal Code section 273ab. The Court of Appeal reversed the conviction finding insufficient evidence to prove the mens rea for the offense, because it failed to show defendant had actual knowledge that he was wrestling too hard with his son. However, the Court of Appeal misapplied the mens rea standard for section 273ab. And substantial evidence showed defendant knew he was striking his young son with his fist, forearm, knee and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury. id: 21559
Defendant personally inflicted GBI on her newborn by failing to cover the baby (resulting in hypothermia).Defendant gave birth to her son at home and concealed the birth as she had concealed the pregnancy. She was convicted of child abuse and neglect and the jury also found the great bodily injury enhancement under Penal Code section 12022.7, subd.(d) to be true. She argued she did not personally inflict great bodily injury as required by the statute even though her negligence caused severe injuries to the child. Contrary to defendant’s claim, a person can “personally inflict” great bodily injury by failing to act where action is required. Moreover, defendant did take “affirmative actions” by only partially covering the baby (leading to hypothermia) and sending her mother away. id: 21457
Any error in failing to define “likely” was harmless in child endangerment case where the jury found defendant’s actions created a high risk of death or great bodily injury. Child endangerment under Penal Code section 273 a requires conduct that is “likely” to cause great bodily harm or death to the child. Defendant argued that trial court should have been instructed on the meaning of “likely”. However, any error was harmless where the jury necessarily found defendant acted with criminal negligence which requires a high risk of death or great bodily injury. id: 20967
Batterer’s program must be imposed under section 1203.097 as a condition of probation for anyone convicted of domestic violence even if the statute defining the crime does not refer to domestic violence.Defendant pled guilty to assault of his former girlfriend and was placed on probation. The trial court later modified the probation to include a 52 week batterer’s counseling program, which was required by Penal Code section 1203.097. Defendant argued that provision should only be applied to those convicted of crimes that target domestic violence victims, unlike his offense - the “generic” assault under section 245, subd.(a)(1). However, section 1203.097 applies to any person placed on probation for a crime if the underlying facts of the case involve domestic violence, even if the statute defining the crime does not specifically refer to domestic violence.id: 20779
Defendant’s constitutional rights were not infringed by his child abuse convictions that were a product of his false and cruel statements that the kids had been molested by their mother and grandfather. Defendant argued his conviction for child abuse based on things he told his children impermissibly infringed on his constitutional rights of parenting and free expression. However, defendant did not have a constitutional right to willfully inflict unjustifiable mental suffering on his children by falsely telling them that their mother and grandfather were both child molesters, that they had been molested by their mother and that their grandfather was the leader of a satanic cult that was plotting to kill them.id: 20767
There was sufficient evidence under the preponderance standard to show defendant committed spousal abuse in violation of the “break no laws” provision in his Vargas waiver.Defendant entered a guilty plea that included a “Vargas waiver” which provided for a prison term (rather than probation) if he failed to appear at sentencing. The agreement also contained a “break no laws” clause. Evidence supported the finding that he violated the terms of his Vargas waiver by committing spousal abuse. The court applied a preponderance of the evidence standard and found a violation based on the bruises on the victim, her ambiguous statements suggesting defendant struck her, and her aunt’s confirmation. The fact that the victim provided contradicting facts, and said later that defendant did not strike her, did not prevent the court from finding the violation.id: 20668
Defendant had care and custody of Kayla for child endangerment purposes when she was riding in his speeding car as he attempted to evade police.Defendant argued his conviction for child endangerment must be reversed because there was insufficient evidence that he had “care or custody” of Kayla within the meaning of Penal Code section 273a, subd.(a). He emphasized that Kayla did not live with him, was not a relative and he had not assumed the responsibilities of a caregiver. However, Kayla was physically in defendant’s care when she was riding in his speeding car as he attempted to evade the police. id: 20667
Defendant cohabitated with the victim for the purposes of section 273.5 where they lived at various times in a two month period in a room she rented, motels and a car. Defendant was convicted of corporal injury to a former cohabitant in violation of Penal Code section 273.5. He argued that his relationship with the victim was neither permanent nor long enough to qualify as cohabitation under the statute. However, defendant and the victim lived together for part of their two month relationship. They lived at various times in the house where she rented a room, in motels and her car. They also shared meals, shopped together, and had sex. There was ample evidence of a relationship to support the conviction.id: 20666
Criminal negligence is the required mens rea for felony child abuse.Criminal negligence is the appropriate mens rea standard for felony child abuse involving the infliction of harm under Penal Code section 273a,subd.(a) The Court of Appeal erred by concluding a defendant must purposefully place the child in a hazardous situation, while possessing a subjective awareness of that risk.id: 16743
Evidence supported the magistrate's finding that defendant abused a dependent adult under section 368(b) where the victim described an act of sodomy by the HIV positive defendant.Defendant was bound over for trial on a charge of felony abuse of a dependent adult under circumstances likely to cause great bodily harm under Penal Code section 368, subd.(b)(1). The incident involved an act of sodomy of a mentally retarded man by a person who was HIV positive. Contrary to defendant's claim, the requisite likelihood was supported by evidence that the victim saw defendant's semen and that he was sodomized. Moreover, in light of the victim's apparent disabilities, evidence supported a finding that defendant knew the victim was a dependent adult. The Penal Code section 995 motion was properly denied.id: 17617
Evidence supported child endangerment conviction where the baby was found on a bed without rails in an unsanitary house.Evidence supported the conviction of child endangerment under Penal Code section 273a, subd.(b), where the child's age-range reasonably supported the inference that she could roll off the bed (which lacked restraints), and the conditions inside the residence were so unsanitary as to pose a danger to health.id: 17741
The trial court did not err in failing to instruct on misdemeanor child abuse as a lesser included offense of felony infliction of injury on a child.Defendant was convicted of felony infliction of an injury on a child in violation of Penal Code section 273d, subd.(a). He argued the trial court erred in failing to instruct on misdemeanor child abuse (section 273a, subd.(b)) as a lesser included offense. However, the provisions have different elements - the latter criminalizing the endangerment or infliction of pain on a child while the former targets the infliction of a traumatic condition. No lesser included offense instruction was required.id: 20007
Evidence supported theft of elder by caretaker conviction where the victim was not capable of consenting to the transfer of funds.Defendant was convicted of theft by a caretaker from an elder under Penal Code section 368, subd.(e). She argued the 68 year-old victim suffering from cognitive impairment due to Parkinson's disease, consented to her taking of more than $17,000 to buy herself a new vehicle. However, substantial evidence showed the victim was not capable of consenting to the transfer of money.id: 19488
A conviction for failure to report elder abuse requires an objectively reasonable suspicion that abuse occurred.Defendant argued the evidence did not support her conviction of violating the Elder Abuse Act set forth in Welfare and Institutions Code section 15600 et seq. Defendant, a licensed nursing home administrator, was convicted of failing to report abuse. She argued on appeal that section 15630 requires that she subjectively recognized the incident in question constituted abuse. However, the statutes provide for an objective standard, i.e., that a report is required if a reasonable person in a like position would have suspected abuse. The evidence supported the conviction as defendant was aware that a staff member grabbed and choked one of the residents.id: 18385
"Likely" to produce great bodily injury or death for purposes of child endangerment requires a showing of substantial danger rather than a probability.Defendant was convicted of two counts of felony child endangerment under Penal Code section 273a. She argued the evidence was insufficient to support the convictions because the
circumstances of the case were, as a matter of law, not "likely" to produce great bodily injury or death. However, for purposes of section 273a, "likely" means a "a substantial danger" of great
bodily harm or death. It does not require a showing that great bodily injury or death was probable or more likely than not. The evidence supported the conviction in count two where
defendant had her 10 year-old son go through an open window of a neighbor's house to commit a burglary, and count three where defendant choked her son, threw him against the refrigerator and
hit the wall near his head with a mop.id: 19024
A street terrorism charge under section 186.22, subd.(a) does not require a finding that defendant commit "a separate felony" in addition to an underlying gang-related felony. Defendant argued the trial court misinstructed the jury on the elements of street terrorism under Penal Code section 186.22, subd.(a). Defendant claimed the court should have instructed that a person cannot be convicted of street terrorism unless he commits or aids and abets "a separate felony" in addition to an underlying gang-related felony offense. However, the instructions given were proper.id: 19163
A parent committing a serious assault on the other parent may lead to the emotional suffering of a child witness and supports a conviction of misdemeanor child endangerment. A parent may be convicted of misdemeanor child endangerment under
Penal Code section 273a, subd.(b), by engaging in serious domestic violence against the other parent while aware that his or her child is at the scene.id: 19295
A conviction of abuse of a dependent adult under section 368 does not require proof that the victim was incapable of carrying out normal activities.Defendant was convicted of the abuse of a dependent adult. He argued the victim, the 60 year old mother of his girlfriend who had suffered a stroke resulting in partial paralysis to her right side and impaired mental abilities was not a "dependent adult." Penal Code section 368 victims include people who have physical or mental problems which "restrict" their ability to function normally. The word "restrict" is not synonymous with "preclude." Evidence supported the conviction.id: 20040
In felony child endangerment provisions there is no exception for parents who treat their children according to their beliefs as Christian Scientists.Appellants were convicted of felony child endangerment after withholding medical treatment for their daughter based on their beliefs as Christian Scientists. Appellants point to Penal Code section 270 regarding the failure to provide the necessities of life to minor children and note a specific exception for parents providing treatment by spiritual means. They argue this exception should also apply to felony child endangerment under section 273a, subdivision (1). However, such exception does not apply to felony child endangerment.id: 10522
Evidence supported felony child abuse or endangerment conviction where defendant's house was filled with dangerous chemicals used to manufacture methamphetamine.Defendant's home contained extremely dangerous chemicals in the living room, dining room, kitchen and garage. The chemicals were dangerous and highly flammable. Defendant willfully exposed his stepson to danger that was likely to cause great bodily harm. Evidence supported the conviction of felony child abuse or endangerment.id: 15499
Evidence supported felony child endangerment provision where defendant encouraged the 14 year-old victim to play Russian roulette.Defendant started a game of Russian roulette, encouraged the 14 year-old victim to participate and was present when the victim shot himself while engaged in Russian roulette. The actions and words of defendant regarding Russian roulette established that he acted in a criminally negligent manner which caused the death of the victim and constituted felony child endangerment as well as involuntary manslaughter. Moreover, the instructions properly framed the superseding cause issue as the following question: on the evidence presented was defendant criminally liable for the death of Jason even though Jason shot himself?id: 15500
Evidence supported defendant's conviction of neglecting his incapacitated mother where she received infections from insects and skin burns from urine and excrement.Defendant argued the evidence was insufficient to support his conviction of neglecting a dependent adult under Penal Code section 368. Defendant was responsible for the care of his paralyzed, incapacitated mother, including her cleanliness. A pathologist testified the circumstances of the victim's neglect were sufficient to cause great bodily harm or death. These included urinary and kidney infections, leg infections from insects, and skin burns from urine and excrement. Evidence therefore supported the court's finding that defendant's conduct was a gross departure from the ordinary standard of due care and was criminally negligent within the meaning of section 368.id: 10510
Evidence supported the felony child endangerment conviction of parents who withheld medical treatment for their daughter on the basis of their beliefs as Christian Scientists.Evidence was sufficient to support appellants' conviction of felony child endangerment. They elected to provide only spiritual assistance to their daughter during her fatal illness in lieu of giving her medical care. The deterioration in her physical condition was steady and she suffered from a disease readily cured by the application of standard antibiotic treatment. Finally, the testimony established that in all probability she would have survived had she been given medical treatment and that her death was the direct result of appellants' failure to give her any medical attention, treatment or care.id: 10512
Presence of stored chemicals, loaded guns and an unsanitary house supported the child endangerment convictions.Appellant's nine and seven year old children lived with him. During a search of the residence, the police found several loaded weapons, storage of dangerous chemicals used in manufacture of methamphetamine, and a complete lack of sanitation. The evidence supported appellant's conviction of felony child endangerment under Penal Code section 273a subdivision (1).id: 10528
Provision regarding endangerment of the health of an elderly and dependent person under circumstances likely to produce great bodily harm was constitutional as applied.Defendant was convicted of endangering the health of a dependant adult, her mother, pursuant to Penal Code section 368, subd. (a). Defendant argued the statute was unconstitutionally vague and overbroad. However, by any standard defendant's action in permitting her mother to literally rot away in defendant's house from simple lack of food and water and various other deprivations, would be considered criminally negligent.id: 10529
At defendant's trial for failure to pay child support the trial court did not err in admitting into evidence his Disclosure Statement filed in Bankruptcy Court.Defendant was charged with failing to pay child support. He argued the trial court erred in admitting into evidence his Chapter 11 Disclosure Statement filed in Bankruptcy Court. He claimed the document gave the jury the mistaken impression that he had substantial assets. However, defendant was given the opportunity at trial to testify about the information contained in the Disclosure Statement. To the extent that the material may have been prejudicial to defendant the court addressed the issue when it weighed the prejudicial effect with the probative value.id: 10492
Defendant under the jurisdiction of the Bankruptcy Court could be prosecuted for failing to pay child support.Defendant was convicted of the misdemeanor of failing to provide for his two minor children under Penal Code section 270. He argued the criminal proceedings violated the automatic stay provisions of the Bankruptcy Code. Section 362(b)(1) of the Bankruptcy Code provides an exemption from the automatic stay for the commencement or continuation of a criminal proceeding against the debtor. Defendant argued the instant case was not a criminal action because the primary function of section 270 is to enforce payment of past due support and not punish criminal conduct. However, this case was a criminal proceeding within the exemption of section 362(b((1).id: 10497
Defendant's bankruptcy filing was not a lawful excuse not to pay child support.Defendant was charged with failing to provide for his two minor children under Penal Code section 270. He argued that he did not willfully refuse to make payments as required but was prohibited from doing so by the Bankruptcy Court. However, by filing bankruptcy appellant did not have a legal excuse not to pay child support. The evidence clearly supported an inference defendant was able to make the payments but chose not to do so.id: 10501
Statutory amendment including parents in contributing to the delinquency of a minor provision is not unconstitutionally vague or overbroad.Penal Code section 272 provides that every person who commits any act or omits any duty causing, encouraging or contributing to the dependency or delinquency of a minor is guilty of a misdemeanor. A 1988 amendment thereto provides that for purposes of this provision parents or guardians shall have the duty to exercise reasonable care, supervision, protection, and control over their children. The amendment provides adequate notice to parents with regard to potential criminal liability for failure to supervise and control children and is not unconstitutionally vague or overbroad.id: 9507
Misdemeanor child endangerment statute is not unconstitutionally vague.Defendant was convicted of misdemeanor child endangerment (Penal Code section 273a, subd. (2)), a lesser included offense of felony child endangerment. She argued the statute was unconstitutionally vague because the phrase under circumstances other than those likely to produce great bodily harm or death, spans the spectrum from very prudent behavior to unacceptable behavior bordering on that likely to produce great bodily harm. However, the provision is not vague. It proscribes criminal acts. If these acts are likely to produce great bodily harm, the crime is a felony, otherwise it is a misdemeanor.id: 9490
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245