Opinion
F072854
11-21-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN WILBURN, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF150017A )
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted John Wilburn of second degree murder and assault on a child with force likely to produce great bodily injury, resulting in the child's death (informally known as child abuse homicide). Wilburn presents a claim of instructional error, arguing the jury was misinformed that the latter offense is a general intent crime. Against the weight of authority on this issue, he contends that a conviction under Penal Code section 273ab requires proof of a specific intent to cause injury. We are obligated to follow California Supreme Court precedent that holds otherwise. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wilburn was charged by information with second degree murder (Pen. Code, §§ 187, 189; count 1) and assault on a child under the age of eight years with force likely to produce great bodily injury, resulting in the child's death (§ 273ab, subd. (a); count 2). The charges were tried before a Kern County jury. Since the appeal concerns a purely legal issue, we provide only a brief summary of the trial evidence.
All further statutory references are to the Penal Code.
The victim was Wilburn's four-month-old daughter. The victim died of injuries sustained while under Wilburn's care, and he was the only percipient witness to the subject events. According to him, the child fell off of a couch.
An autopsy determined the cause of death to be blunt force trauma to the head. The medical examiner's findings were indicative of "at least one extremely powerful blow, such as in a violent car accident." A defense expert opined that a congenital condition was misdiagnosed as a skull fracture, and that the victim died of severe complications from a viral infection, with cardiomyopathy (heart disease) as a contributing factor.
Wilburn was found guilty as charged. The trial court, using count 2 as the principal offense, imposed a prison sentence of 25 years to life. A stayed sentence of 15 years to life was imposed for the second degree murder conviction. The notice of appeal was filed on the date of sentencing.
DISCUSSION
Section 273ab, subdivision (a) provides, in pertinent part: "Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life." In People v. Albritton (1998) 67 Cal.App.4th 647 (Albritton), the Fourth District Court of Appeal held that section 273ab is a general intent crime. (Id. at p. 658.) "The mens rea for the crime is willfully assaulting a child under eight years of age with force that objectively is likely to result in great bodily injury—that is, the assault must be intentional. ... [¶] [The statute] does not require a specific intent to produce great bodily injury." (Ibid., italics added.)
The trial court utilized CALCRIM No. 820 to instruct the jury on the elements of section 273ab. This instruction is partially derived from the holding in Albritton, supra, specifically with regard to mens rea. (See Authority to CALCRIM No. 820 (Spring 2016) p. 599.) The instruction is also based on People v. Williams (2001) 26 Cal.4th 779 (Williams), which explains that although the crime of assault contains a knowledge requirement (i.e., knowledge that a battery will directly, naturally and probably result from the conduct in question), assault is nevertheless a general intent crime. (Id. at p. 788.)
Wilburn submits that section 273ab is not accurately characterized as an assault crime because it punishes the end result of the proscribed behavior, namely, the death of a child. He points to the statute's legislative history, which reveals the Legislature's intent to enact a new "child homicide" felony that would punish child abuse resulting in death like a murder. Moreover, as enacted, section 273ab, subdivision (a) requires a minimum sentence of 25 years to life, which is identical to the punishment for first degree murder. (See § 190, subd. (a).) Pursuant to this reasoning, Wilburn alleges instructional error with regard to the required mental state for count 2.
Wilburn's unopposed request for judicial notice of relevant legislative history material is hereby granted. --------
Wilburn's argument was considered and rejected by the Third District in People v. Norman (2003) 109 Cal.App.4th 221. There, the appellant complained that section 273ab "is a disguised version of first degree murder, only without malice[,] ... [and] is, in effect, a state effort to avoid the requirement to prove 'premeditated and deliberated express malice' in a first degree murder case, by simply defining an assault that results in death with the same penalty as first degree murder." (Id. at p. 226.) In the appellate court's view, "[t]he fact that the sentence happens to be the same as for first degree murder is not relevant. [There is] no authority for the implicit proposition that crimes cannot have the same punishment without the same elements." (Id. at p. 229, fn. omitted.)
Regardless of whether or not we find Wilburn's argument persuasive, the issue is foreclosed by the California Supreme Court's decision in People v. Wyatt (2010) 48 Cal.4th 776 (Wyatt). There, a 14-month-old child died of internal injuries after a bout of "play-wrestling" with his father, who claimed to have had no actual knowledge that he was wrestling too hard with his son. (Id. at pp. 779, 783, 785.) On appeal from a conviction under section 273ab, the defendant argued the evidence was insufficient to prove the required mental state. The high court found sufficient evidence to support the conviction under the following rationale: "Consistent with Williams [supra], a defendant may be guilty of an assault within the meaning of section 273ab if he acts with awareness of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from his act. [Citation.] The defendant, however, need not know or be subjectively aware that his act is capable of causing great bodily injury. [Citation.] This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to result in such injury." (Id. at p. 781.)
Wilburn's opening brief concedes that "the case law is against him." In his reply, however, he asserts that Wyatt has no preclusive effect because the California Supreme Court "did not explicitly consider whether Penal Code section 273ab is a homicide statute rather than an assault statute." His position is untenable for the following reasons.
First, the gravamen of Wilburn's argument was also considered and rejected in Albritton, supra: "It is the Legislature's prerogative to define crimes and set punishments for crimes. ... No constitutional provision precludes the Legislature from creating a new homicide crime without a malice aforethought element and setting a life imprisonment penalty for the crime." (67 Cal.App.4th at p. 660.) The Wyatt opinion cites favorably to Albritton, not for that particular conclusion but with respect to the applicable mens rea. (Wyatt, supra, 48 Cal.4th at pp. 781, 784-786.) Second, an appellate panel is not free to disregard binding precedent on grounds that the higher tribunal did not consider a specific argument. The doctrine of stare decisis requires that we affirm the judgment. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
/s/_________
BLACK, PRO TEM J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.