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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 violating
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.
--
Kathy E
"I can only please one person a day, today is NOT your day, and tomorrow
isn't looking too good for you either"
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