People v. CafferoPeople v. Caffero
- Reporters:
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- Before:
- Puglia
Opinion
PUGLIA, P. J.
The People appeal from the judgment dismissing the information charging murder (
On appeal the parties debate the suitability of felony child abuse (§ 273a, subd. (1)) to support application of the second degree felony-murder rule, dividing on the questions: (1) whether it is inherently dangerous to human life (see
People
v.
Burroughs
(1984) 35 Cal.3d 824 [201 Cal.Rptr. 319, 678 P.2d 894]) and (2) whether it is integral to the homicide (see
People
v.
Ireland
(1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]). The first question was raised but not decided in
People
v.
Smith
(1984) 35 Cal.3d 798, 808 [201 Cal.Rptr. 311, 678 P.2d 886], and
People
v.
We shall hold that felony child abuse is not inherently dangerous to human life and therefore not an appropriate predicate to application of the felony-murder rule. Our conclusion renders the second question academic. We are then left with the task of considering the evidence at the preliminary hearing to determine if it provides a rational basis for believing that defendants are guilty of murder, i.e., that they acted with malice aforethought (People v. Slaughter (1984) 35 Cal.3d 629, 633 [200 Cal.Rptr. 448, 677 P.2d 854]). Finding that it does not, we shall affirm.
Defendants Jay and Tina Caffero are the parents of Christina, who was bom prematurely on December 17, 1986. Christina was kept in the hospital for five days after her birth for medical reasons. She was then returned home to the care of defendants.
On December 31, Tina became concerned about Christina’s health because the infant was “jumpy.” Tina called the hospital emergency room for advice, explaining that Christina was “blinking and jerking.” She was told to contact her own physician or bring the infant to the emergency room if she believed it was a “real emergency.” Tina decided instead to wait until her mother-in-law, Sharon Caffero, could see the infant the next day. On January 1, Sharon Caffero saw Christina and expressed the opinion she suffered from colic and had a “diaper rash.”
At 10:40 p.m. on January 2, defendants brought Christina to the hospital emergency room. The triage nurse observed Christina had good facial color and deemed her “non-urgent.” Christina’s temperature was 98.9 degrees.
The nurse next viewed Christina at midnight. At that time she noticed Christina was pale, had sores on her anus and foot and fecal staining on her skin. A doctor was immediately summoned. Despite intensive treatment, Christina’s condition rapidly deteriorated. By 1:30 a.m., her temperature had plummeted to 93.2 degrees and her blood pressure was extremely low. She died later that day of an overwhelming bacterial infection, Escherichia coli (E. coli).
Four medical doctors agreed, with varying degrees of confidence, that the infection most likely had been introduced into Christina’s bloodstream
At the conclusion of the preliminary examination, the magistrate declined to hold defendants to answer on the murder charge, but did hold them on a violation of section 273a, subdivision (1), felony child abuse. The magistrate made no factual findings. In an information filed on May 28, 1987, the People charged murder and felony child abuse. The superior court granted defendants’ motion to dismiss the murder charge. (§ 995.)
I
“The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of
all
felonies inherently dangerous to human life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. [Citations.] Thus, ‘A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in
Second degree felony-murder convictions have been sustained on the unchallenged, unarticulated assumption that violation of section 273a, subdivision (1) is a felony inherently dangerous to human life. (People v. Shockley, supra, 79 Cal.App.3d at pp. 674-677; People v. Northrop, supra, 132 Cal.App.3d at pp. 1031-1040 [disapproved on other grounds in People v. Smith, supra, 35 Cal.3d 798, 807-808].) However, we believe the later decision in People v. Burroughs, supra, 35 Cal.3d 824, is inconsistent with the continued indulgence of that assumption.
In
Burroughs,
defendant was convicted of second degree felony murder. The underlying felony on which the existence of malice was posited was violation of Business and Professions Code section 2053, practicing medicine without a license. That section states in relevant part: “Any person who willfully,
under circumstances or conditions which cause or create a risk
In analyzing whether a felony is inherently dangerous to human life, the elements of the felony must be examined in the abstract, not the particular facts of the case. (Burroughs, supra, 35 Cal.3d at pp. 829-830; People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647]; People v. Lopez (1971) 6 Cal.3d 45, 51 [98 Cal.Rptr. 44, 489 P.2d 1372].) The statutory definition of the offense must be viewed as a whole, taking into account even nonhazardous ways of violating it which do not endanger human life. If the statute may be violated by conduct which does not endanger human life, it is not inherently dangerous to human life. (Burroughs, supra, 35 Cal.3d at pp. 830-831.)
The statutory analysis in
Burroughs
focused on the phrase “great bodily harm ... or death.” (
Like Business and Professions Code
The People endeavor to distinguish
Burroughs,
noting that Business and Professions Code
The People attempt to distinguish section 273a, subdivision (1) because, unlike Business and Professions Code
Although the victims of both crimes are found among the most vulnerable in our society, the sick and infirm on the one hand and children on the other, there are substantial differences in the social impacts of practicing medicine without a license and felony child abuse. We are not unaware of the shocking incidence of child abuse in our society nor indifferent to the special need of helpless children for the full measure of protection which the law can afford. Nevertheless, applying the Burroughs analysis to the functionally indistinguishable language of section 273a, subdivision (1), we are impelled to the conclusion that felony child abuse is not inherently dangerous to human life within the meaning of the felony-murder rule.
II
In declining to hold defendants to answer for murder, the magistrate did not make findings of fact. Thus, we must uphold the trial court’s dismissal (§ 995) of the refiled murder charge (§ 739) unless the evidence provides a rational basis for assuming the crime of murder has been committed and defendants are guilty of it in which case the dismissal was erroneous as a matter of law. (People v. Slaughter, supra, 35 Cal.3d at pp. 637-638.) If there is some evidence to support the charge, the courts will not inquire into its sufficiency (Jackson v. Superior Court (1965) 62 Cal.2d 521, 525 [42 Cal.Rptr. 838, 399 P.2d 374]). However, an information must be set aside if there is a total absence of evidence to support a necessary element of the crime charged. (Somers v. Superior Court (1973) 32 Cal.App.3d 961, 963 [108 Cal.Rptr. 630].)
The People do not contend the evidence shows defendants acted with express malice. Rather, they argue malice may be implied from the evidence that defendants omitted to discharge their parental duty of care, thus demonstrating an “abandoned and malignant heart.”
The evidence establishes that Christina’s condition became extremely grave a short time after she was brought to the hospital. Within hours of her arrival she died of an overwhelming bacterial infection, E. coli, introduced into her system through perianal sores.
Dr. Smedley, an emergency medicine specialist, testified that Christina’s skin was stained from prolonged contact with fecal matter causing it to break down into open sores in the perianal area. According to Dr. Achtel, a pediatric intensive care specialist, these sores were the worst he had ever seen over many years of contact with sick children and probably required several days to develop. Dr. Moody, another pediatric intensive care specialist, also regarded Christina’s perianal sores as the most severe he had ever seen on a child her age.
It is reasonably inferable that Christina’s death was caused by grossly inadequate care at the hands of defendants, specifically their failure to maintain minimally acceptable standards of hygiene and to seek timely medical care for Christina. However, there is no evidence defendants were actually aware their conduct endangered Christina’s life. Although the physicians testified Christina’s sores probably began to develop in the days before defendants brought her to the hospital, no evidence suggested defendants knew they were life-threatening. Christina’s grandmother had examined her the day before she was brought to the hospital and advised Tina she had “colic and diaper rash.” Tina had applied a “cream” to the affected area. Two days before she was brought to the hospital Tina observed that Christina was “blinking and jerking.” She reported this to hospital emergency room personnel but the advice she received conveyed no sense of urgency about the need for immediate medical attention. Indeed, when Christina arrived at the hospital she exhibited no obvious symptoms of her life-threatening condition. Her temperature was only marginally above normal and her skin color was good. On admission an experienced triage nurse deemed her “non-urgent.”
The judgment is affirmed.
Evans, J., and Blease, J., concurred.
Appellant’s petition for review by the Supreme Court was denied April 20, 1989.