THE PEOPLE,
S257631
IN THE SUPREME COURT OF CALIFORNIA
March 2, 2023
Third Appellate District C085998; Shasta County Superior Court 15F2440
Justice Groban authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Jenkins, and Cantil-Sakauye* concurred.
* Retired Chief Justice of California, assigned by the Chief Justice pursuant to
PEOPLE v. BROWN
S257631
Opinion of the Court by Groban, J.
Defendant Heather Rose Brown gave birth to a baby girl in a hotel room. In the fifth day of her life, while lying face down between her sleeping parents who were both under the influence of heroin, Brown‘s newborn daughter stopped breathing. When Brown woke and noticed, she directed her daughter‘s father to call 911. Brown administered CPR, following the dispatcher‘s instructions, until the ambulance arrived. Further efforts to resuscitate Brown‘s daughter were unsuccessful. An autopsy revealed traces of heroin-derived morphine and methamphetamine in the baby‘s body fluids and the contents of her stomach.
The District Attorney charged Brown with first degree murder and prosecuted the charge on the theory that Brown had poisoned her newborn
Brown argues that the jury instructions were incomplete because they did not require the jury to find she fed her daughter her breast milk with a mental state equivalent in turpitude to the willfulness, deliberation, and premeditation that generally distinguishes first degree murder from second degree murder. The Attorney General argues that the instructions were complete, because, in his view, proof that a defendant used poison is sufficient to elevate a murder to the first degree, without any proof of mental state beyond the showing of malice required for all murder convictions. We conclude Brown has the better argument.
When dividing the common law offense of murder into two degrees, the Legislature reserved for the first degree types of murders that are “cruel and aggravated” and thus “deserving of greater punishment” than other malicious or intentional killings, which are punishable only as second degree murder. (People v. Sanchez (1864) 24 Cal. 17, 29 (Sanchez).) From the beginning, those murders have included all murder “perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate and premeditated killing.” (1 Hittell‘s Cal. Gen. Laws from 1850 to 1864, par. 1425, § 21 (1872) (Hittell‘s); id. at par. 1423, § 19.)
We previously have interpreted this language to require proof of a mental state more culpable than the malice required for second degree murder, in keeping with the Legislature‘s determination that murders perpetrated by these means warrant the greater punishment reserved for first degree murder. For torture murder, the prosecution must show “wilful, deliberate and premeditated intent to inflict extreme and prolonged pain.” (People v. Steger (1976) 16 Cal.3d 539, 546 (Steger).) For lying in wait murder, the prosecution must show the defendant performed the acts of watching, waiting, and concealment with the intent to take the victim
The trial court‘s instructions did not include this element of first degree poison murder. This was error. And because a rational jury could have concluded the prosecution did not prove beyond a reasonable doubt that Brown deliberately gave her newborn daughter the poisonous substances in her breast milk with the intent to kill her or inflict injury likely to cause her death, the error was prejudicial. Accordingly, we reverse Brown‘s first degree murder conviction.
I. BACKGROUND
A. Trial Court Proceedings
1. Evidence of Events Leading to Baby‘s Death
In a recorded interview played for the jury, Brown told a police investigator she met her husband, Daylon Reed, when she was twenty years old. Reed dealt and used drugs, including marijuana, methamphetamine, and heroin, and soon after meeting him, Brown began to use heroin. A few months into their relationship, Brown learned she was pregnant. Brown continued to use heroin during her pregnancy and occasionally also used methamphetamine.
Brown had almost no prenatal care and she and Reed made no arrangements for their baby‘s birth. When Brown went into labor, the couple got a hotel room and Brown called a friend and asked her to find a midwife. Brown‘s friend called a friend of hers, a doula who had assisted a midwife with some deliveries, who agreed to attend the birth. Brown smoked heroin while in labor, believing it would help with the pain, hiding that she was doing so from the doula and her mother, who also was present for the birth, by smoking in the bathroom.
At trial, several witnesses testified that Brown said she did not want to give birth in a hospital because she was afraid that if she tested positive for drugs the baby would be taken away. Reed‘s sister Michelle testified that she had
Brown‘s daughter, Dae-Lynn Rose, appeared healthy at birth, but a couple days later began to appear ill. The doula, Brown‘s mother, and Brown‘s father and stepmother all advised Brown and Reed to take the baby to a doctor, but they did not do so. Brown admitted to the police investigator that she believed that if she gave birth at the hospital or took her baby to a doctor, her baby would be taken from her. Nevertheless, Brown said she had been planning to take Dae-Lynn to a doctor on the day she died.
Brown also admitted that after Dae-Lynn‘s birth, she and Reed smoked heroin almost every day. She said they smoked in the bathroom so the baby would not inhale it. When confronted, she admitted that she also smoked methamphetamine once during her daughter‘s life.
Brown fed Dae-Lynn both breast milk and infant formula. When Dae-Lynn was two days old, Brown searched for information on the internet about how to help newborns suffering from withdrawal. She told the police investigator she continued to feed Dae-Lynn breast milk because she had read on the internet that when “babies were withdrawing” breast milk is “supposed to help ease ‘em.” When the investigator asked Brown whether she supplemented her breast milk with formula because she was afraid that the heroin she was using would pass into her breast milk, Brown responded, “Yes, and it wasn‘t just that. It was also the lack of milk that I was producing.” When the investigator suggested to Brown that perhaps she had intentionally passed drugs to Dae-Lynn in her breast milk to try to alleviate her withdrawal symptoms, Brown responded, “I never had that thought even come across my mind.”
2. Evidence Related to Baby‘s Death
Dae-Lynn died in the fifth day of her life. In the early morning hours, Brown and Reed smoked heroin. Later, Brown fed Dae-Lynn a couple of times, giving her breast milk and infant formula. Mid-morning, Brown fell asleep, putting the baby face down between her and Reed on the hotel room bed. Dae-Lynn woke up again once, crying, and Brown repositioned her so she was lying next to Brown, under Brown‘s arm. Around noon, a housekeeper woke Brown and Reed and told them they needed to go to the office and pay if they were planning to stay another night, but they fell back asleep without paying. Before falling asleep, Brown looked at Dae-Lynn, who was breathing normally.
Around 1:00 p.m., hotel management woke Brown and Reed, telling them they had to leave unless they paid for another night. Brown went to the door
When the police investigator asked Brown later that day what she thought caused Dae-Lynn‘s death, she said she thought maybe she had accidentally suffocated her daughter in her sleep. When he asked her whether she suffocated Dae-Lynn on purpose, she denied any intent to harm her daughter and expressed her love for Dae-Lynn and excitement about being a mom. When the police investigator told Brown six months later, at the time of her arrest, that the autopsy report said her baby had died from exposure to methamphetamine and heroin, Brown responded: “[T]hat . . . kills me because I was only trying to help her. I didn‘t wanna try to harm my daughter at all. I never would intentionally.”1
3. Jury Instructions
The trial court instructed the jury that to find Brown guilty of murder, it must find she intentionally committed a prohibited act or intentionally failed to perform a required act “with a specific intent and/or mental state” that would be explained in the murder instruction. In the murder instruction, the court explained that to convict Brown of murder in the first or second degree, the jury had to find that she committed “an act” that was a substantial factor in causing the victim‘s death with the mental state of malice aforethought. As to the act requirement, the court further instructed that a parent‘s “failure to act” in accordance with the duty to “provide care, obtain medical attention and protect a child is the same as doing any injurious act.” As to the mental state requirement, the court explained that malice can be either express, meaning the defendant “unlawfully intended to kill,” or implied, meaning that: (1) “she intentionally committed an act,” (2) “the natural and probable consequences of the act were dangerous to human life,” (3) “[a]t the time she acted, she knew her act was dangerous to human life,” and (4) “she deliberately acted with conscious disregard for human life.” The court elaborated: “[M]alice aforethought does not require hatred or ill will toward the victim. . . . It does not require deliberation or the passage of any period of time.”
On the degree of murder, the trial court explained: “If you decide the defendant committed murder, it is murder of the second degree, unless the
4. Verdict and Sentencing
The jury convicted Brown of the first degree murder by poison of Dae-Lynn, among other offenses not at issue. The trial court imposed a sentence of 25 years to life for that count.
B. Court of Appeal Proceedings
On appeal, Brown contended that the jury instruction on first degree poison murder was incomplete because it did not inform the jury that the defendant must administer the poison willfully, deliberately, and with premeditation. In an unpublished opinion, the Court of Appeal rejected this argument, concluding: “[I]t appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.”2
II. DISCUSSION
We granted review to determine whether, to prove first degree murder by poison, it is enough for the prosecution to show the defendant‘s use of poison was a substantial factor in causing the victim‘s death, or whether instead the prosecution must show the defendant acted with a particular mental state when using the poison, separate from the showing of malice that would support a conviction of second degree murder. We also agreed to decide whether reversal of Brown‘s first degree murder conviction would be required if we concluded the trial court erred in failing to instruct on the mental state required for first degree poison murder. For the reasons discussed below, we hold that to elevate a murder to the first degree, it is not enough for the prosecution to prove the use of poison was a substantial cause of the
A. Instructional Error
A trial court must instruct on each element of a charged offense, even when the defendant does not propose a complete instruction or object to the court‘s failure to provide one. (People v. Merritt (2017) 2 Cal.5th 819, 824.) In this case, the trial court did not instruct the jurors that they were required to find Brown had used the poison with any particular, heightened mental state to convict her of murder in the first degree. Rather, its instruction on the degree of murder permitted the jurors to find Brown guilty of first degree murder if they found that she committed murder and the use of poison was a substantial factor in causing her daughter‘s death. Under these instructions, second degree implied malice murder became first degree murder based on the act of using poison alone; the jury was not required to find that Brown acted with a more culpable mental state when feeding her daughter her breast milk.
To determine whether the trial court erred in failing to instruct on the mental state element of first degree murder by poison, we must first determine whether there is such an element. Brown argues a poison murder is only in the first degree if the killer poisoned the victim on purpose, with the calculated deliberation and cold-blooded intent that renders first degree murder more deplorable than second degree murder, and that the trial court‘s failure to instruct on this mental state was error. The Attorney General disagrees, arguing that no instruction on the mental state specific to the act of poisoning was required because all murders by means of poison are categorically murders in the first degree. In the Attorney General‘s view, the act of using poison suffices to elevate an implied malice murder to the first degree.
1. Language, Context, and History of Penal Code Section 189
To resolve this dispute, we begin with an examination of the statutory language in its historical context.
This division of murder into two degrees — and the designation of murders by means of poison, lying in wait, and torture as kinds of first degree premeditated murder — has been part of California law since before the adoption of the
Explaining the Legislature‘s intent in enacting
This history shows the Legislature specified that “[a]ll murder that is perpetrated by means of . . . poison, lying in wait, [or] torture . . . is murder of the first degree” because it considered such murders to be kinds of “willful, deliberate, and premeditated killing,” and as such deserving of the greater punishment reserved for first degree murders, which at the time of
2. First Degree Murder by Torture, Lying in Wait, and Other Means
While an examination of the language of
We discussed the mental state component of murder by means of torture in People v. Heslen (1945) 163 P.2d 21 (Heslen), concluding that “the requirement of an intent to cause pain and suffering” is implicit in the word “torture.” (Id. at p. 27.) Later, in People v. Tubby (1949) 34 Cal.2d 72, we emphasized that “[t]he dictionary definition [of torture] was appropriately enlarged upon by this court” in Heslen to include “intent . . . to cause cruel suffering.” (Tubby, at pp. 76-77.) We further elaborated on this definition in Steger, supra, 16 Cal.3d at page 546, explaining that first degree “murder by means of torture” is “murder committed with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.” We reasoned: “In labeling torture as a ‘kind’ of premeditated killing, the Legislature requires the same proof of deliberation and premeditation for first degree torture murder that it does for other types of first degree murder.” (Ibid.) We went on to explain: “It is not the amount of pain inflicted which distinguishes a torturer from another murderer, as most killings involve significant pain. [Citation.] Rather, it is the state of mind of the torturer — the cold-blooded intent to inflict pain for personal gain or satisfaction — which society condemns. Such a crime is more susceptible to the deterrence of first degree murder sanctions and comparatively more deplorable than lesser categories of murder.” (Ibid.) Our holding in Steger thus rested on the premise that the requirement that the defendant have a mental state of “wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain” was necessary to preserve the distinction between calculated, deliberate murder, which is murder in the first degree, and other types of intentional or malicious killing, which are second degree murder. (Id. at p. 546; id. at pp. 544-546 & fn. 2; see Wiley, supra, 18 Cal.3d at p. 168 [torture designated as first degree murder in part because “the calculated nature of the acts causing death” make torture particularly reprehensible]; People v. Cole (2004) 33 Cal.4th 1158, 1227 [same].)
In People v. Tuthill (1947) 31 Cal.2d 92, we addressed the mental state question in the context of first degree murder by lying in wait.
Thus, in both the torture-murder context and the lying-in-wait context, we have given content to the bare statutory requirement that a first degree murder be “perpetrated by means of . . . poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing.” (
3. First Degree Murder by Means of Poison
This case brings to light the need for us to elaborate on the meaning of the phrase “murder . . . perpetrated by means of . . . poison,” just as prior cases have required us to elaborate on the meanings of “torture” and “lying in wait.” (
The Attorney General attempts to distinguish poison murder from murder by torture and lying in wait by arguing that poison is more closely analogous to the additional means of murder the Legislature designated as first degree murder after the
Regardless of whether proof of the defendant‘s mental state is required to elevate to the first degree a murder by means of destructive device, explosive, weapon of mass destruction, or armor-piercing ammunition — a question we do not reach in this case — their subsequent addition to
That the Legislature would consider poison murder — like murder by lying in wait or torture — to be a kind of “wilful, deliberate, and premeditated” killing (Hittell‘s, supra, par. 1425, § 21) makes sense when we think of the typical poison murder, in which the defendant intentionally and surreptitiously administers a deadly dose of poison to an unsuspecting victim. The poison murder cases we have decided to date generally follow this pattern. In People v. Albertson (1944) 23 Cal.2d 550 (Albertson), the defendant was accused of putting cyanide in vitamin capsules and mailing them to the victim with a letter advertising them as ” ‘vitalizing vitamin vigor.’ ” (Id. at p. 559; id. at p. 563.) In Archerd, supra, 3 Cal.3d 615, the defendant injected two of his wives and his nephew with massive doses of insulin, causing diabetic shock. (Id. at pp. 625-626, 631-635.) In People v. Diaz (1992) 3 Cal.4th 495 (Diaz), a nurse murdered 12 intensive care unit patients by injecting them with overdoses of lidocaine. (Id. at pp. 517-518, 538.) In People v. Catlin (2001) 26 Cal.4th 81 (Catlin), the defendant murdered his wife and mother by giving them the highly toxic weed-killer paraquat. (Id. at pp. 99-103.) And in People v. Blair (2005) 36 Cal.4th 686 (Blair), the defendant murdered his drinking companion by putting cyanide in a bottle of gin, carefully replacing the cap so the bottle appeared unopened, and having the bottle delivered to the victim by a mutual friend. (Id. at pp. 745-746.)
Court of Appeal cases likewise follow this pattern. In People v. Botkin (1908) 9 Cal.App. 244, the defendant murdered her lover‘s wife by sending her a box of candy containing arsenic “with intent that [she] should eat thereof and be killed thereby.” (Id. at p. 249.) In People v. Potigian (1924) 69 Cal.App. 257, the defendant gave arsenic to her stepdaughter “with intent to bring about her death.” (Id. at p. 264.) And in People v. Cobler (1934) 2 Cal.App.2d 375 (Cobler), the defendant murdered her
In each of these cases, the way the defendant carried out the poisoning left no question that the defendant deliberately gave the victim poison, if not with the intent to kill, at least with the intent to inflict injury likely to cause the victim‘s death. Perhaps for this reason, none of these cases directly addresses whether the prosecution must prove the defendant had a specific, heightened mental state in giving the victim the poison to elevate a poison murder to the first degree, and if so, what mental state the prosecution must prove. Our case law does, however, provide some guidance on these questions.
In Mattison, supra, 4 Cal.3d at pages 184-186, we addressed the distinction between second degree felony murder based on felony poisoning in violation of
The parties debate the significance of these observations. The Attorney General cites Mattison in support of his argument that a showing of implied malice in giving the victim poison is sufficient to elevate it to the first degree. He would have us read Mattison as holding that if the prosecution proves the defendant administered the deadly poison with malice, the murder is categorically first degree murder. Brown contends that Mattison‘s observation that the poisoning must be done with an “evil purpose‘” supports her construction of the statutory language as requiring something more than malice in the administration of the poison. (Mattison, supra, 4 Cal.3d at p. 183.) Mattison does not clearly support either position.
In Mattison, we were not called upon to decide whether the prosecution must prove a state of mind in the administration of poison that is more culpable than malice for the murder to be in the first degree. Instead, the question before us was whether the defendant had been validly convicted of second degree murder by means of poison. (Mattison, supra, 4 Cal.3d at pp. 180-182.) We did not identify the specific mental state necessary to elevate a murder by means of poison to the first degree. However, our holding rested on the premise that to be a first degree murder, the act of using poison must be carried out with a state of mind more culpable than that associated with second degree murder on a felony murder theory, i.e., more culpable than “‘willfully mingl[ing] any poison with any food, drink or medicine, with intent that the same shall be taken by any human being to his injury ....‘” (Id. at p. 184.)
While Mattison, supra, 4 Cal.3d at page 186 made clear that to prove first degree murder by poison, the prosecution must show a mental state more culpable than willful administration of poison with intent to injure, our cases have also made clear it is not necessary to prove the defendant administered
We now clarify that to prove a murder by poison is in the first degree, the prosecution must show that the defendant deliberately10 gave the victim poison with the intent to kill the victim or inflict injury likely to cause the victim‘s death.11 Reading this requirement into “murder ... by means of poison” (
While the trial court‘s instructions required the jury to find Brown acted with implied malice, they did not require the jury to find that Brown acted with any specific, heightened mental state in feeding Dae-Lynn her breast milk. The instructions thus allowed the jury to convict Brown of first degree murder without finding she deliberately gave her newborn daughter poison with the intent to kill her or inflict injury likely to cause her death. Indeed, they permitted the jury to convict Brown of first degree murder even if it believed Brown fed her baby the breast milk with the intent to bond with her, nourish her, treat her illness, or soothe her. Such a conviction would not reflect a jury finding that, in giving the victim the poison, the defendant acted with the “calculated deliberation” or “cold-blooded intent” we require to elevate a murder to the first degree. (Steger, supra, 16 Cal.3d at p. 546.)
Accordingly, we conclude that the trial court was required to instruct the jury that to find Brown guilty of first degree murder, it had to find that she deliberately gave her newborn daughter poison with the intent to kill her or inflict injury likely to cause her death. Its failure to so instruct was error.
The omission of an element of an offense from a jury instruction violates “the right to a jury trial under the Sixth Amendment to the United States Constitution” by depriving the defendant of “a jury properly instructed in the relevant law.” (In re Martinez (2017) 3 Cal.5th 1216, 1224; see Neder v. United States (1999) 527 U.S. 1, 12 (Neder).) Having found such an error, we must “examin[e] the entire cause, including the evidence, and consider[] all relevant circumstances.” (People v. Aledamat (2019) 8 Cal.5th 1, 13 (Aledamat).) Unless, based on this examination, we conclude “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” we reverse the conviction. (Chapman v. California (1967) 386 U.S. 18, 24; see Neder, at p. 15.)
In a more typical murder by poison case, in which a defendant is alleged to have surreptitiously put arsenic in candy, cyanide in vitamin capsules, or strychnine in a glass of milk, the record is likely to supply overwhelming evidence that the defendant deliberately gave the victim poison and did so, if not with the intent to kill the victim, then at least with the intent to inflict injury likely to cause the victim‘s death. (See, e.g., Albertson, supra, 23 Cal.2d 550; Blair, supra, 36 Cal.4th at pp. 745-746; Cobler, supra, 2 Cal.App.2d at pp. 377-379.) In this more typical fact pattern, this mental state element also is likely to be uncontested, such that if a trial court has omitted it from the first degree murder instruction, we may conclude “beyond a reasonable doubt ... that the jury verdict would have been the same absent the error.” (Neder, supra, 527 U.S. at p. 17; see People v. Mil (2012) 53 Cal.4th 400, 417 [missing element error “is harmless when ‘the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . ‘“].)
This case, however, is different. Based on the record here, a rational jury — if properly instructed — could have concluded the prosecution had not met its burden to prove that Brown deliberately gave her newborn daughter poison. (See Neder, supra, 527 U.S. at p. 19.) A rational jury could have given credence to Brown‘s statement that the thought of feeding her daughter drugs via her breast milk had never “even come across [her] mind.” Moreover, evidence in the record would allow a rational jury to conclude the prosecution had not met its burden to prove that Brown fed her daughter her breast milk with the intent to kill her or to inflict injury on her that was likely to cause her death. In response to questions from the police investigator about the cause of Dae-Lynn‘s death, Brown expressed her love for her daughter
Indeed, the prosecutor did not argue Brown intended to kill or even harm her daughter. Instead, her closing argument focused the jury‘s attention on Brown‘s failure to perform her parental duties by taking illegal drugs while pregnant, failing to get prenatal care, giving birth in a hotel room without proper medical assistance, failing to take her baby to the doctor immediately after birth, failing to take her baby to the doctor when she began to suspect her baby was showing symptoms of withdrawal, and feeding her baby her breast milk after smoking methamphetamine and heroin. Addressing Brown‘s mental state in administering the poison, the prosecutor argued that “the only difference between first degree and second degree is that first degree requires ... the People prove the murder was done by using poison.” At the conclusion of her argument, the prosecutor emphasized that “you can still love someone but act intentionally and prove that you are acting intentionally because you repeat the behavior, knowing the consequences are dangerous to human life, knowing them because you are a drug user. You are an addict yourself. Performing them with knowledge that this is going to be dangerous and repeating them over and over again. You can still do all of that and love the person that you are doing them to. It‘s one of the horrible parts about being a human being. And that‘s exactly what she did in this case. And she did it by introducing poison into her daughter‘s system.”
The Attorney General contends any instructional error was harmless because, in his view, the evidence at trial established that Brown knew the drugs she was taking would pass into her breast milk, but she still intentionally fed her baby the breast milk. The Attorney General‘s argument is based on a misconception of our task. In assessing prejudice in this context, the question is not whether there is evidence in the record that would support a jury finding of the missing element. Instead, we ask whether we can conclude beyond a reasonable doubt that “the jury verdict would have been the same” had the jury been instructed on the missing element. (Neder, supra, 527 U.S. at p. 17.) If “the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element,” the error is prejudicial. (Id. at p. 19.) The Attorney General‘s argument also is based on an incorrect understanding of the omitted element. As we have clarified, administering poison with malice only supports a conviction of second degree murder; for
On this record, we cannot conclude beyond a reasonable doubt that the jury would have found Brown guilty of first degree murder had it been instructed that to do so, it had to find that she deliberately gave her newborn daughter poison with the intent to kill her or inflict injury likely to cause her death. The omission of this element from the jury instructions was prejudicial.
III. CONCLUSION
Because the trial court failed to instruct the jury on the mental state element of first degree murder by poison and because this error was prejudicial, we reverse the judgment. We remand to the Court of Appeal with directions to return the case to the superior court for further proceedings consistent with our opinion.13
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
* Retired Chief Justice of California, assigned by the Chief Justice pursuant to