S279737
IN THE SUPREME COURT OF CALIFORNIA
January 6, 2025
Second Appellate District, Division Five B322744; Kern County Superior Court MF013183B
Justice Evans authored the opinion of the Court, in which Justices Liu, Groban, and Jenkins concurred. Justice Liu filed a concurring opinion, in which Justices Groban and Evans concurred. Justice Kruger filed a concurring opinion. Chief Justice Guerrero filed a dissenting opinion, in which Justice Corrigan concurred.
PEOPLE v. COLLINS
S279737
This case concerns implied malice murder liability based on a parent‘s failure to act — specifically, their failure to protect their child from another person‘s fatal act. Defendant Brittney Collins was convicted of second degree murder for the death of her two-month-old son, Abel James Norwood, who was killed by his father, Matthew Norwood. Norwood committed the fatal act while Abel was under Norwood‘s care and Collins was in another room. Given the facts established at trial, we recognize this is a close case. We hold, however, that the evidence was insufficient to convict Collins of second degree murder. Applying the law governing implied malice murder in the distinct context of a prosecution based on a failure-to-protect theory, the evidence fails to establish Collins harbored the requisite mens rea to convict her of second degree murder under either a direct aider and abettor theory or a direct perpetrator theory. Accordingly, we reverse the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Collins and Norwood began their romantic relationship in 2017. Both Collins and Norwood used methamphetamine, and Norwood also used heroin. In early 2018, Collins became pregnant with their child. While Collins stopped using drugs during her pregnancy, Norwood‘s drug use continued.
When Collins was pregnant, Norwood made several comments, including in Collins‘s presence, that he did not want to be a dad and did not want the baby. When Collins was seven months pregnant, Norwood told a neighbor he did not want to be a dad and tried poking Collins in the abdomen with a screwdriver. Norwood physically abused Collins while she was pregnant, commenting at one point that he wanted to make her lose the baby.
Collins suffered complications during her pregnancy, including gestational diabetes and high blood pressure. On August 16, 2018,1 she gave birth to Abel by an emergency cesarean section. Collins nearly died during childbirth. After the birth, Abel was hospitalized for a week in the neonatal intensive care unit. Collins developed an infection in her uterus from the cesarean section and was placed on antibiotics. As Collins recovered from childbirth, Norwood‘s drug use, volatility, and abuse continued, as described in further detail below.
Following Abel‘s birth, Collins brought Abel to three “well-baby” visits — the last of which occurred on October 16. In addition to these visits, Collins
On October 17, Collins was recovering on the couch from complications caused by the cesarean section while Norwood acted as Abel‘s primary caregiver. As Abel‘s parents, Collins and Norwood shared caretaking responsibilities. Collins‘s grandmother, who also lived with Collins and Norwood, was present.
Earlier that morning, Norwood had used methamphetamine, and Collins and Norwood argued about his drug use. Collins told Norwood to move out. Norwood became upset and broke Collins‘s cell phone.
Throughout the rest of the day, Collins was in the front room, accompanied by her grandmother, on the couch. She was periodically sleeping and also applying for jobs. Abel was with Collins on the couch earlier in the morning and slept in the back bedroom for most of the day.
At 1:00 p.m., Collins woke up from a nap and checked on Abel while he was sleeping in the back bedroom. Initially, she thought his breathing seemed shallow, but then it normalized. She returned to the couch in the front room.
At 3:30 p.m., Abel woke up from sleeping in the back bedroom. Collins and her grandmother were still in the front room, and Norwood told them that he was going to change and feed Abel. Collins offered to feed and change Abel, but Norwood insisted he do so himself. Norwood went to the back bedroom, and Collins and her grandmother remained in the front room.
Sometime later, Collins heard a bang from the back bedroom — which turned out to be Norwood committing the fatal act. She did not hear Abel cry after the noise. Collins described the noise as similar to a cell phone being dropped from one foot high onto a table. Over the prior several weeks, she had heard a similar noise five to six times when Norwood was caring for
Around 15 to 20 minutes after Collins heard the loud noise, Norwood came back to the front room. He told Collins and her grandmother that Abel did not want his bottle and that Abel had gone back to sleep. Norwood, who was acting antsy, then left for an errand. Collins remained in the front room.
Approximately one hour later, Collins checked on Abel and found him in a state of medical emergency. He appeared to be having a seizure. He was foaming at the mouth and his body was pale. Collins screamed and got help from two of her neighbors as her grandmother held Abel. One of the neighbors called 911. Abel was running a high fever, and the other neighbor put cool water on him. Collins was crying hysterically. Paramedics arrived and transported Abel to the hospital. The responding medics did not observe any physical injuries.
Once Abel was transported to the hospital, his injuries started to show externally, with bruising. Medical personnel obtained x-rays and a CT scan. The x-rays and scan revealed extensive injuries, largely to Abel‘s skull and ribs, consistent with child abuse. Based on these findings, authorities questioned Collins and Norwood at the hospital.
On October 18, police executed a search warrant of Collins‘s grandmother‘s residence. They recovered a small amount of drugs and a hypodermic needle. There was also a suitcase packed with men‘s clothing on the bed.
After agreeing to speak with officers at the police station, Collins and Norwood sat in the back of a patrol car. During their conversation in the back of the car, Norwood told Collins he would never throw her under the bus, and Collins assured him that she would not throw him under the bus either.
During an initial police interview, Collins claimed the drugs were hers, although they belonged to Norwood. She stated that Norwood was not abusive and suggested that her grandmother may have dropped Abel. She elaborated that her grandmother had physical limitations and would pick Abel up even though she directed her grandmother not to do so. When Collins was informed of the extent of Abel‘s injuries, she said, “I wouldn‘t bring this little boy into the world to hurt him. Especially, that I might not even get another one.” She explained she had polycystic ovarian syndrome and had been diagnosed with infertility.
The next day, detectives interviewed Collins a second time. During that interview, Collins described physical abuse that Norwood had inflicted upon her. When Collins maintained she did not know how Abel was injured, the detective asked Collins “what is your gut as a mother telling you right now? Mo-moms are built to have an — an instinct. And — and, to just in their gut know certain things, what is your gut telling you?” Collins later stated, “I know earlier you asked me about intuition and stuff and like what I think. I really think his dad did it.”
Collins elaborated that she suspected Norwood had been abusing Abel when she had heard loud noises coming from the back bedroom on five or so different occasions when Norwood cared for Abel alone. On those past occasions, Abel would cry, and Collins would check if he was okay; Norwood would provide an innocent explanation and question whether she was accusing him of abuse. She told the detectives that, the day after Abel was taken to the hospital, she bumped into the door and it did not make the same sound that Norwood caused. She explained that, although she questioned Norwood, she told herself, “[O]h that‘s [Abel‘s] dad and I‘m supposed to love and trust him. I — I believe what he tells me. . . . That‘s dad. That‘s daddy. I trust him.”
Collins then described Norwood‘s past acts of abuse towards both herself and Abel — which she attributed to Norwood‘s rage from heavy drug use. During her pregnancy, Norwood choked Collins and kneed her in the stomach, although he later claimed it was accidental. When Collins was nine months pregnant, Norwood pushed Collins and told her he would make sure Abel was not born. She believed Norwood was trying to make her lose Abel when he pushed her down hard and jumped on top of her when she was pregnant. Norwood also kicked her in the face, knocking her tooth loose. A week before Norwood‘s fatal act, he hit her so hard she was sore for a week, slammed her, and hit her nose.
Regarding Norwood‘s abuse of Abel, Collins explained Norwood “slam[med] dope all the time” and was often “too high to deal with” Abel. She stated Norwood would partially cover Abel‘s mouth when Abel was
When a detective pointed out Collins had in fact witnessed abuse, Collins responded she had told Norwood to leave a few times and stated she was afraid to call the police. She indicated Norwood had threatened her if she ever sent him to jail. She stated she was scared of Norwood trying to kill her. She explained Norwood put a camera in their room when she was four months pregnant “so [he] could watch [her].” Collins also reported that Norwood overdrew all of her bank accounts and that, consequently, she no longer had her own bank accounts. She repeated, “If I could, I would‘ve called the police on him the first time I saw him put his hand over [Abel‘s] mouth and manned up, not been afraid of him or called the police the first time he hit me when I was pregnant.” She was aware Norwood had previously been convicted of domestic violence. She stated that, based on Norwood‘s abuse of her, she believed Norwood was responsible for Abel‘s injuries.
On October 24, Abel died at two months old from blunt force trauma.
During her pretrial detention, Collins used a razor to cut her wrists and said her husband killed her son. She was taken to the infirmary.
At trial, a forensic pathologist testified Abel had fresh injuries from blunt force trauma on the right back side of his head with one external head injury — a bruise on the top side of his forehead. The pathologist generally referred to the injuries being caused by one blow and ultimately concluded the injuries were caused by Abel being swung by his leg into a hard surface. The pathologist also stated that Abel had a fresh fracture to his left leg. The pathologist opined Abel‘s injuries were caused by someone using his leg as a handle and throwing him against either the wall or the ground. The pathologist, as well as a radiologist, opined Abel had other fractures — mainly to his ribcage — nearly all of which occurred seven to fourteen days before the fatal injury. An ophthalmologist testified that an examination of Abel‘s eyes revealed injuries consistent with trauma.
The nurse practitioner testified about her physical examinations of Abel. During her examinations of Abel on October 10 and October 16, she observed no physical injuries. She testified that she looked at Abel‘s eyes and palpitated his ribcage. She “saw no signs of bruising, no signs of trauma, no signs of cuts, scrapes, anything like that.” She did not note anything following Abel‘s assessment because “[h]e seemed like a normal two-month baby.” She did not request any X-rays for Abel because she “didn‘t see any reason to.”
In her defense, Collins testified she saw Norwood bounce Abel too hard and heard loud bangs five or six times when Norwood cared for Abel. She testified she never saw Norwood physically hurt Abel. She testified she had lied about witnessing Norwood bump Abel‘s head into things and pin Abel down because she wanted to return to Abel and thought the detectives would let her go if she told them what they wanted to hear. She described some of the physical abuse she endured during her pregnancy — including Norwood pushing her down and choking her. She maintained that she was afraid of confronting Norwood about whether he was hurting Abel. She testified that she relied on Norwood to help take care of Abel due to her complications from the cesarean section. Collins explained that she and Abel relied on Norwood‘s income. She also stated she attributed Norwood‘s rage to his drug use. She testified that she had confronted Norwood about his drug use that morning, that she had told Norwood to move out, and that Norwood was packing to leave. Collins stated, “I should have tried harder to make him leave” and she “never intentionally failed to act” to protect Abel.
The prosecutor‘s theory was that Collins knew “[Norwood] was a chronic methamphetamine user, a violent abusive person and [Collins] let him stay near Abel and inflict injuries.” The prosecutor continued: “This is the person she‘s letting watch her child. [Norwood] was abusive . . . choked her, kneed her while pregnant, kicked her.” The prosecutor argued Collins knew she should have called the police, but she picked Norwood over Abel.
The trial court instructed the jury on two theories of second degree murder as follows: (1) Collins directly aided and abetted Norwood in the commission of the murder (CALCRIM Nos. 400 & 401); and (2) she was a direct perpetrator of the murder based on her failure to act (CALCRIM No. 520).3 The trial court also gave a special instruction regarding the parental duty to act, which provided: “A parent has a legal duty to his or her minor child to take every step reasonably necessary under the circumstances in a given situation to exercise reasonable care for the child, to protect the child from harm, and to obtain reasonable medical attention for the child.”
On October 21, 2020, Collins‘s jury convicted her of second degree murder.4 Her jury found her not guilty of assault of a child under eight years old resulting in death but guilty of the lesser included offense of assault with force likely to cause great bodily injury. The trial court sentenced Collins to 15 years to life and stayed the remaining term of three years for the assault count.
The Court of Appeal affirmed Collins‘s murder conviction on the ground that Collins “knew of Norwood‘s abuse of Abel but intentionally failed to take any reasonable steps to protect the baby — including on the day in question when [she] knew Norwood was high and still angry from their earlier argument.” The Court of Appeal further reasoned Collins knew Abel would be fussier than usual having just had his vaccination shots, did not
II. DISCUSSION
We granted review to determine whether sufficient evidence supports Collins‘s second degree murder conviction for the death of her infant son, Abel, based on her failure to protect him from his father, Norwood. Below, we clarify the requisite elements of implied malice murder in the distinct context of conferring criminal liability based on one‘s failure to act, and apply those elements as clarified to the particular facts of this case.
In considering a sufficiency of the evidence claim, we review “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) Substantial evidence is ” ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ ” (People v. Marshall (1997) 15 Cal.4th 1, 34.)5
” ‘Evidence which merely raises a strong suspicion of the defendant‘s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact.’ [Citation.] The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact. ‘[I]n determining whether the record is sufficient . . . the appellate court can give credit only to “substantial[“] evidence, i.e., evidence that reasonably inspires confidence and is “of solid value.” ’ ” (People v. Kunkin (1973) 9 Cal.3d 245, 250 (Kunkin).)
A jury must avoid ” ’ “unreasonable inferences and not . . . resort to imagination or suspicion.” [Citation.]’ [Citation.] ‘Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not
A. LIABILITY BASED ON FAILURE TO ACT
As an initial matter, the parties agree that Collins‘s liability — as either an aider and abettor or a direct perpetrator — would be based on her parental duty to act. Typically, liability for a crime requires an individual to engage in affirmative conduct. However, criminal liability may be based on a “negative act” — a willful omission or failure to act — where there is a duty to act. (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Elements, § 23, p. 296.) A duty to act may derive from the express terms of a statute, another statute, or common law. (People v. Heitzman (1994) 9 Cal.4th 189, 197-198 (Heitzman).)
We join the majority of our sister courts in recognizing a parent‘s failure to act can constitute an affirmative act for the purposes of criminal liability in some situations. (See State v. Walden (N.C. 1982) 293 S.E.2d 780, 784 (Walden); People v. Stanciel (Ill. 1992) 606 N.E.2d 1201, 1211 (Stanciel); State v. Edgar (Kan. 2006) 127 P.3d 1016, 1023-1024; but see Commonwealth v. Raposo (Mass. 1992) 595 N.E.2d 773, 777 [a parent‘s inaction cannot provide a basis for accessory liability]; State v. Jackson (Wn. 1999) 976 P.2d 1229, 1233-1235 [same].) As this court has recognized, “[A] criminal statute may . . . embody a common law duty based on the legal relationship between the defendant and the victim, such as that imposed on parents to care for and protect their minor children.” (Heitzman, supra, 9 Cal.4th at p. 198, citing LaFave & Scott, Criminal Law (2d ed. 1986) § 3.3, pp. 203-204 and People v. Burden (1977) 72 Cal.App.3d 603 (Burden).)
We agree with the general principle articulated in People v. Rolon (2008) 160 Cal.App.4th 1206 (Rolon) that, based on common law, ” ‘[a] parent has a legal duty to his or her minor child to take every step reasonably necessary under the circumstances in a given situation to exercise reasonable care for the child, to protect the child from harm, and to obtain reasonable medical attention for the child’ ” (id. at p. 1213) and “aiding and abetting liability can be premised on a parent‘s failure to fulfill his or her common law duty to protect his or her child from attack” (id. at p. 1219). Rolon, however, allowed for murder liability based on a parental duty to act under the natural and probable consequences doctrine. (Ibid.) Specifically, Rolon provided: “[L]iability as an aider and abettor requires that the parent, by his or her inaction, intend to aid the perpetrator in commission of the crime, or a crime of which the offense committed is a reasonable and
Importantly, the parental duty to protect has bounds. To confer criminal liability, parents must be aware that their duty to protect has arisen. Parents are not required to ” ‘place themselves in danger of death or great bodily harm in coming to the aid of their children.’ ” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 745 (Swanson-Birabent), quoting Walden, supra, 293 S.E.2d at p. 786.) What is reasonably possible for a parent to do to protect their child from harm or to stop an attack depends on the circumstances of each individual situation. (Ibid.) “[T]he relative size and strength of the parties involved is relevant to a determination of what is reasonable.” (Rolon, supra, 160 Cal.App.4th at p. 1220.) “In some cases, depending upon the size and vitality of the parties involved, it might be reasonable [for] a parent to physically intervene and restrain the person attempting to injure the child. In other circumstances, it will be reasonable for a parent to go for help or to merely verbally protest an attack upon the child.” (Walden, supra, 293 S.E.2d at p. 786.)
When a factfinder evaluates what reasonable steps were available for the parent to protect their child, the relationship of the direct perpetrator to the child will frequently be highly relevant. Co-parents have their own duty to protect and their own parental rights and obligations. When the abusive person is the child‘s co-parent, the parent shares the fundamental right to the “companionship, care, custody, and management” of their child. (In re B.G. (1974) 11 Cal.3d 679, 688; In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [“[p]arenting is a fundamental right“].) A parent has rights and obligations relating to their child, whereas a stranger has none (Troxel v. Granville (2000) 530 U.S. 57, 100-101 (conc. opn. of Kennedy, J.)), and a parent may not unilaterally prevent the other parent‘s contact with their child. (Adoption of Kelsey S. (1992) 1 Cal.4th 816.) As such, a parent may be more limited in what they can reasonably be expected to do to protect their child from the other parent, as compared to a non-parent.
Furthermore, there are frequently additional complexities in considering what reasonable steps can be taken for an abused parent to safely navigate
We further clarify today that, while criminal liability based on the failure-to-protect doctrine does not necessarily require that the parent be present for or actively participate in the perpetrator‘s acts, liability for murder on a failure-to-protect theory is appropriately reserved for individuals who actually know to a substantial degree of certainty that a life-endangering act is occurring or is about to occur and failed to act in conscious disregard for life.
As a general rule, malice is implied when the defendant deliberately performs an act, knowing that their conduct endangers the life of another, and acts with conscious disregard for life. (E.g., Reyes, supra, 14 Cal.5th at p. 989.) When, however, the defendant has not committed any “act” at all, but instead is charged with murder based on failure to protect the victim from acts committed by another, this inquiry necessarily becomes more nuanced. As explained in greater detail below, existing case law addressing murder liability based on failure to protect demonstrates the nature of the mens rea requirement in this context, as compared to more typical implied malice murder prosecutions in which the focus is on the defendant‘s own harmful actions that led to the victim‘s death. Thus, courts have found liability in failure-to-protect cases when the defendant was present, and thus contemporaneously aware of the life-endangering harm being inflicted on the victim, or knew, to substantial certainty, that the life-endangering harm would occur. (See post, pp. 22, 27-29.) These conclusions make sense. A failure to act can imply malice only when the defendant has a substantial degree of certainty that a third party is inflicting, or will inflict, life-threatening harm; only then can it be said that the defendant knows that failure to intercede, too, will endanger the victim‘s life, and that the defendant‘s choice to do nothing has been made with conscious disregard for that life.
The requirement of a sufficiently blameworthy mental state is critical to prevent the failure-to-protect doctrine from giving rise to a “broad,
With these principles in mind, we turn to the issue of whether sufficient evidence supports Collins‘s second degree murder conviction due to a failure to act.
B. DIRECT AIDER AND ABETTOR THEORY OF LIABILITY
We first consider whether the evidence is sufficient to sustain Collins‘s murder conviction based on a direct aider and abettor theory of liability. Applying the standard we recently clarified in Reyes, supra, 14 Cal.5th 981, we hold Collins did not have the requisite mens rea to support direct aider and abettor liability.
In Reyes, we explained what is required to establish implied malice murder based on aiding and abetting liability. ” ‘In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’ ” (Reyes, supra, 14 Cal.5th at p. 991.) “The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator‘s acts that confers liability on the aider and abettor.” (People v. Curiel (2023) 15 Cal.5th 433, 468.) “The requisite intent is a”
subjective one — the defendant must have ” ‘actually appreciated the risk involved.’ ” (People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 501.)
For murder liability to
1. Mens Rea as an Aider and Abettor
The evidence is insufficient to establish that Collins harbored the requisite knowledge and intent to convict her of implied malice murder as an aider and abettor.
There is no evidence that Collins knew with substantial certainty that Norwood intended to commit the life-endangering act — i.e., critically injure Abel, much less swing him by the leg and throw him into a hard surface — before or during Norwood‘s commission of that act. Collins (and her grandmother) were under the impression that Norwood would be changing and feeding Abel as he had done before. Collins and her grandmother remained in the front room — where they had been throughout the day — when the act occurred. At one point, Collins heard a “bang” noise, which turned out to be Norwood‘s completed commission of the fatal act. Collins heard similar noises when Norwood was alone with Abel on previous occasions and afterward found Abel crying but not visibly injured. On this day, Collins did not hear Abel cry after the noise. When Norwood returned to the front room 15 to 20 minutes after the bang, he told Collins and her grandmother that Abel did not want his bottle and that Abel had gone back to sleep. Norwood seemed antsy and left the house, while Collins remained in the front room. When Collins next checked on Abel approximately one hour later, Collins saw Abel was in a state of medical emergency. She screamed and got medical attention immediately. This evidence does not support a reasonable inference that Collins knew Norwood intended to commit the fatal act prior to or during its commission.
First, there was not sufficient evidence that Collins knew that Norwood was engaged in a life-endangering act against Abel “as the attack happened.” Contrary to the Attorney General‘s suggestion, this is not a case where a parent fails to act upon witnessing their child being attacked. For instance, in Swanson-Birabent, supra, 114 Cal.App.4th 733, the victim‘s mother was convicted of lewd acts on a child based on aiding and abetting her boyfriend‘s commission of lewd acts on her five-year-old daughter. (Id. at p. 737.) On two occasions, the mother stood close to her boyfriend and daughter as she watched her boyfriend digitally penetrate her daughter. (Ibid.) The Swanson-Birabent court explained, “Instead of attempting to stop [her boyfriend] by words or actions, [the victim‘s mother] stood by and watched as he committed a lewd act on the victim. In failing to act, she both encouraged the victim to comply with [her boyfriend] rather than resist, and she encouraged [her boyfriend] to continue molesting the victim.” (Id. at p. 746.) The court also concluded the mother aided her boyfriend since her knowledge of her boyfriend‘s actions and her intent “arose sometime during the commission of the molestation.” (Id. at p. 743.) Here, on the other hand, there is no evidence Collins knew Norwood was committing a life-endangering act prior to or during its commission. Unlike the defendant in Swanson-Birabent, Collins was not in the same room where the act took place and did not otherwise observe or participate in it. While actual presence is not required to establish liability based on a failure to protect, there was no evidence supporting a reasonable inference Collins was aware of the attack as the attack happened.
Second, the evidence that Collins knew Norwood used methamphetamine six hours earlier and was angry with her that morning does not support a reasonable inference Collins knew of Norwood‘s intent to commit the life-endangering act against Abel on the afternoon of October 17. The Attorney General mischaracterizes the record by incorrectly stating Norwood‘s attack on Abel occurred in the morning; it actually occurred in the afternoon. The fatal attack did not occur immediately after Norwood used drugs and broke Collins‘s phone that morning. The attack occurred approximately six hours later, sometime after 3:30 p.m. While there is evidence
More generally, we find that Norwood‘s anger towards Collins and his property damage of her phone do not support a reasonable inference that Collins knew of Norwood‘s intent to commit a life-endangering act against Abel on the afternoon of October 17. We note, however, that even if Norwood‘s anger towards Collins could support an inference about Collins‘s knowledge of the danger Norwood posed to Abel, it would presumably also raise an even stronger inference about the danger Norwood posed to Collins. This would tend to undermine liability for failure to carry out a duty to protect, rather than support it. In the law generally, courts must consider evidence of intimate partner violence as a mitigating circumstance or evidence that otherwise diminishes culpability. (See, e.g.,
Third, the evidence of Collins‘s knowledge of Norwood‘s previous abuse of Abel does not support a reasonable inference that Collins knew to a substantial degree of certainty that Norwood intended to commit life-endangering abuse against Abel on the afternoon of October 17. Although Collins testified that she had lied to detectives about witnessing dangerous abuse, the jury reasonably could have determined Collins indeed knew that
While any physical abuse of an infant is cause for significant concern, there is no evidence Collins knew, based on the past acts of abuse, that Norwood intended to inflict life-threatening harm on Abel. Importantly, Collins (and her grandmother) observed no signs of physical injuries prior to the fatal act. Medical testimony established that the fatal act caused injuries — including external ones to Abel‘s head and leg — that were distinct in nature from injuries caused by Norwood‘s past acts of abuse — nonfatal internal injuries, mainly rib fractures. When Collins was concerned about Abel‘s apparent gastrointestinal discomfort, she sought immediate medical attention. No medical personnel observed any signs of trauma or physical abuse at Abel‘s medical visits, including at the check-up that occurred the day before the fatal injury. At that visit, the nurse saw no signs of bruising, trauma, cuts, or scrapes, and she described Abel as appearing “like a normal two-month baby.”7 Abel‘s injuries were not visible to the responding emergency technician and only became apparent once he was at the hospital. In light of this
The facts in People v. Werntz (2023) 90 Cal.App.5th 1093 and Stanciel, supra, 606 N.E.2d 1201 provide useful comparisons to the facts of this case. In both cases, the parents had a much higher involvement than Collins in the offense of which they were convicted, and both cases generally demonstrate knowledge with a substantial degree of certainty that the perpetrator intended to commit the life-endangering act. In Werntz, the mother was held liable as an aider and abettor for implied malice murder for the death of her ten-week-old daughter. (Id. at pp. 1099–1100.) The mother‘s conviction was based, in part, on her failure to seek medical attention for a serious leg injury the perpetrator inflicted on her daughter which would have caused ” ‘swelling, redness, [and] puffiness’ ” that ” ‘would have been “obvious” to the naked eye.’ ” (Id. at pp. 1100, 1103.) It was also based on Werntz‘s knowledge that the perpetrator killed Werntz‘s first child by “brutal means” (id. at p. 1117) and by her participation in preventing authorities from ascertaining the cause of her daughter‘s death. (See id. at pp. 1116–1118.) Here, prior to the fatal act, Collins did not observe any physical injuries, Collins made various efforts to secure appropriate medical attention for Abel, there was no evidence Norwood had brutalized other children, and Collins obtained medical care immediately upon observing Abel was in a state of medical emergency.
Stanciel involved two consolidated cases. (Stanciel, 606 N.E.2d at p. 1209.) In one of the cases, the mother was found liable as an aider and abettor for implied malice murder based, in part, on her knowledge of her
Finally, there is no evidence supporting a reasonable inference that Collins intended to aid Norwood in his commission of the life-endangering act. We find Glenn v. State (Ga. 2004) 602 S.E.2d 577 (Glenn) instructive. In that case, the mother was convicted of various charges — including felony murder — for the death of her three-week-old daughter. (Id. at p. 578.) Several days before the infant‘s death, the mother noticed a serious injury to her daughter‘s leg. (Ibid.) After waiting, the mother eventually took her daughter to a hospital, and medical staff determined the injury was caused by the infant‘s leg being forcefully twisted or shaken. (Ibid.) There was evidence the mother had been informed that her boyfriend could have caused the injury and that he had committed prior acts of abuse against other children. (Id. at p. 580.) Shortly thereafter, the mother left her infant in her boyfriend‘s care as the mother slept. (Id. at p. 579.) The mother awoke to her boyfriend stating her infant was having trouble breathing. (Ibid.) The infant was taken to the hospital where it was later determined she had died from blunt force trauma to the head. (Ibid.)
In reversing various convictions relating to the child‘s death, the Georgia Supreme Court held there was insufficient evidence that the mother intentionally aided and abetted her boyfriend‘s acts that caused her daughter‘s head injuries. (Glenn, supra, 602 S.E.2d at p. 580.) The court reasoned the prosecutor did not dispel the theory that the mother was sleeping when her boyfriend committed the fatal abuse against her daughter. (Ibid.) The court stressed that intentional aiding and abetting was required rather than inadvertent or incidental contribution to the offenses. (Ibid.)
Here, the prosecution similarly failed to carry its burden in establishing that Collins intentionally aided and abetted Norwood‘s commission of the life-endangering act. The Attorney General argues Collins‘s intent to aid Norwood can be inferred based on her protecting Norwood during the investigation. It is true that Collins protected Norwood during her first
Lastly, we emphasize it is improper to infer a parent‘s knowledge that another person intends to commit a life-endangering act against their child based on gendered expectations of parenthood. Here, police questioned Collins about her “mother intuition.” They asked about her “gut” as a mother and remarked how she was “built” with a maternal instinct to protect her child and know what was happening to Abel without direct observation. Assumptions about what Collins should have done based on outmoded, gendered notions of a mother‘s — as compared to a father‘s — role in caring for a child are not proper in determining a mother‘s liability for murder based on a failure to protect. (See Anthony, The Law of Motherhood in the Gender-Dependent Application of Criminal Responsibility for Failing to Protect Children (2022) 24 Geo. J. Gender & L. 1, 16 [explaining that, based on gender stereotypes, mothers are often held to a higher standard than fathers to protect their children]; Comment, supra, 52 U.S.F. L.Rev. at p. 152.) While the statements noted above occurred during the police interrogation, prosecutors and courts must take care to ensure that this type of gender bias does not infect our criminal justice system.
2. Actus Reus as an Aider and Abettor
Because we hold there was insufficient evidence that Collins harbored the requisite mens rea, we need not determine whether Collins committed an omission that was sufficient to establish the actus reus required for aiding and abetting implied malice murder. However, in light of the arguments in the trial court and on appeal, we clarify several legal principles regarding the requisite actus reus for second degree murder based on one‘s failure to act. The principles discussed herein pertain to failure-to-protect criminal prosecutions — a context distinct from dependency or family law.
In the context of aiding and abetting implied malice murder based on a parent‘s failure to protect, the actus reus could be based on the parent‘s failure to take reasonable steps necessary to either protect their child from a known, imminent life-endangering act or to stop a life-endangering attack on
In arguing Collins failed to take reasonable steps to protect Abel, the prosecution asserted Collins could have left Norwood by moving out of her grandmother‘s home and living with other family, could have called the police, or could have reported Norwood to Abel‘s examining physician. However, as Collins notes, this reasoning effectively resurrects the natural and probable consequences theory of liability by permitting liability for murder based on a parent‘s failure to protect their child from felony child abuse. Here, the prosecutor‘s suggestions might be pertinent to a claim that Collins acted with criminal negligence by willfully permitting the abuse of Abel that she knew or should have known was occurring (see People v. Valdez (2002) 27 Cal.4th 778 (Valdez)), but they do not support a claim that Collins failed to take reasonable steps to protect Abel from the life-endangering act.
Contrary to failing to act in response to Norwood‘s previous acts of abuse, there was evidence Collins did take affirmative and reasonable steps to protect Abel based on the information known to her and in light of her physical state. Collins proactively took Abel to wellness checks and secured medical care for him as needed. As to Norwood‘s prior abuse of Abel, Collins either physically took Abel away from Norwood or would tell Norwood to stop being physical with Abel when Collins thought Norwood was being too rough with him. On other occasions, Collins told Norwood to leave. On the morning of the life-endangering act, Collins and Norwood got into an argument about Norwood‘s drug use and Collins demanded that he move out. Collins took these steps even while in a compromised physical state and reliant upon Norwood, as Abel‘s father, for practical and financial support.
In evaluating what steps Collins reasonably could have taken to protect Abel, the fact that Norwood was Abel‘s father was a highly relevant consideration. As discussed supra, Norwood had rights and obligations concerning Abel, and the steps Collins would have needed to take to remove Abel from Norwood‘s care are qualitatively different from those to remove her child from a non-parent‘s care. Those steps were not fully appreciated or considered by the prosecution in this case.
As noted, there are additional complexities in considering what reasonable steps can be taken for an abused parent to safely navigate around or leave an
Instead of recognizing these unfortunate realities of domestic violence, the Attorney General focuses on the fact that Collins did not expressly state that she was afraid to leave Norwood (although she did say she feared him and was afraid of confronting him) and asserting that “Collins prioritized her relationship with Norwood over the safety of her son.” But again, the prosecution needed to prove there were steps Collins could have safely taken to prohibit Norwood from caring for his son in light of the risk leaving or confronting him (which Collins had done that very morning) posed to Collins and to Abel.
The Attorney General stresses that Collins admitted she should have done a better job in protecting Abel. To be sure, Collins expressed remorse in not taking more immediate and effective action to prevent Abel‘s death. We would expect any reasonable, caring parent to express remorse that they were unable to prevent their child‘s death — no matter the cause. At most, Collins‘s sentiments support a reasonable inference that she recognized, in hindsight, she did not behave as a reasonable parent. This inference supports a finding that Collins was criminally negligent, as required for felony child endangerment (Valdez, supra, 27 Cal.4th at pp. 789–790), but it fails to suffice for a finding she harbored malice.
We next address simple implied malice murder. Murder is committed with implied malice when “the killing is proximately caused by ’ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143.) To sustain Collins‘s verdict of second degree murder based on a direct perpetrator theory of liability, there must be sufficient evidence that Collins‘s failure to protect Abel involved a ” ‘high degree of probability that it will result in death’ ” (id. at p. 156), that Collins knew her failure to act endangered human life and acted with conscious disregard for life, and that her failure to act proximately caused Abel‘s death. For malice to be implied, a defendant must be subjectively aware that their acts or omissions endangered the life of their child.
It is true that a reasonable jury could infer that Collins knew to a substantial degree of certainty that Norwood might commit an act of serious, but nonlethal, abuse based on her knowledge of Norwood‘s state and having witnessed his past acts of abuse. For the reasons discussed above, however, there was insufficient evidence that Collins subjectively appreciated her failure to act was life endangering, because she had no reason to know to any substantial degree of certainty that Norwood would commit a life-endangering act while she remained on the couch.9 The abuse Collins witnessed was different in kind from Norwood‘s fatal act — an act that caused visible external injuries. As discussed above, based upon a physical examination the day before the murder, Abel appeared to be a normal two-month-old. There is no evidence supporting a reasonable inference that Collins was actually aware that her failure to prevent Norwood from going into the back bedroom to change and feed Abel on the afternoon of October 17 endangered Abel‘s life or that her act of remaining on the couch was in conscious disregard for his life.10
Because there was insufficient evidence of mens rea under a direct perpetrator theory of liability, we need not address the remaining elements of proximate causation and the objective ” ’ “high degree of probability that it will result in death” ’ ” element. (Reyes, supra, 14 Cal.5th at p. 989.)
In sum, insufficient evidence supported Collins‘s second degree murder conviction for the death of her son under either a direct aiding and abetting theory or a direct perpetrator theory. Accordingly, we reverse the judgment of the Court of Appeal and remand with instructions to direct the trial court to vacate Collins‘s conviction for second degree murder and resentence her in accordance with the decision herein.
EVANS, J.
We Concur:
LIU, J.
GROBAN, J.
JENKINS, J.
PEOPLE v. COLLINS
S279737
Concurring Opinion by Justice Liu
A baby girl, D.M., was born on November 5, 1985 to Loreli and Steven Michael. (Michael v. State (Alaska Ct.App. 1988) 767 P.2d 193, 196 (Michael), revd. on other grounds (Alaska 1991) 805 P.2d 371.) Steven was in the Army and, starting in December, “was out of town on field maneuvers for about two weeks.” (Id. at p. 196.) From his return in mid-December until the day D.M. was taken to the hospital, Steven “would on some days spend long hours on duty, but on other days would spend a substantial amount of time at home.” (Ibid.)
On January 5, 1986, the Michaels brought two-month-old D.M. to the emergency room with a swollen leg. (Michael, supra, 767 P.2d at p. 196.) D.M. was diagnosed with “multiple fractures,” including “both femurs . . . , the upper and lower bones of both arms, and at least nine ribs,” as well as “a bruise on the back of her left shoulder,” “two burns on her left forearm,” and “broken blood vessels on her face and neck.” (Ibid.) Steven and Loreli were each charged with thirteen counts of first degree assault. (Id. at p. 195.)
Following a bench trial, the trial court concluded that Loreli “had personally inflicted D.M.‘s injuries” and sentenced her to “ten years with three years suspended” on three counts of first degree assault, to be served concurrently. (Michael, supra, 767 P.2d at p. 195.) The trial court found Steven guilty of two counts of second degree assault, “a lesser-included offense,” noting that he “had not inflicted the injuries on his daughter and had not acted as an accomplice to [his wife‘s] infliction of D.M.‘s injuries.” (Id. at p. 196.) The court sentenced him to four years in prison for breaching his parental duty to assist D.M. “when he knew that she was physically mistreated and abused by his wife.” (Id. at pp. 196-197.)
Although the trial court found it was Loreli, not Steven, who “personally assaulted D.M.” (Michael, supra, 767 P.2d at p. 202), the evidence nonetheless appeared sufficient to convict Steven of first degree assault on the theory that he “knowingly engage[d] in conduct that result[ed] in serious physical injury to another under circumstances manifesting extreme indifference to the
It is understandable that the trial court in Michael tempered the father‘s punishment to account for his absences and lack of personal involvement in the abuse. (Michael, supra, 767 P.2d at pp. 195-196, 201.) Yet this impulse to moderate punishment for harms that a parent did not personally inflict is not extended equally to mothers. (Anthony, The Law of Motherhood in the Gender-Dependent Application of Criminal Responsibility for Failing to Protect Children (2022) 24 Geo. J. Gender & L. 1, 3 (Anthony).) “Broad investigations of cases involving prosecution of the non-abusing parent under failure to protect laws reveal[] that . . . the prosecuted parent is nearly always the mother.” (Id. at p. 13.) And even in the “uncommon instances where fathers are charged for failure to protect, they are more likely to be charged with lesser offenses.” (Id. at p. 16; see Purvis, The Rules of Maternity (2017) 84 Tenn. L.Rev. 367, 404 [noting the “almost complete absence of fathers charged with a failure to protect their child” even though “by raw numbers alone, parents witnessing abuse by their co-parent . . . are fathers, and not mothers“].) Michael involved the conviction of a father on a lesser charge; we do not know how many fathers who witness abuse of their child are never convicted or charged at all.
I am aware of one statewide study of the disparate application of failure-to-protect laws, and that study shows stark gender disparities. (ACLU Oklahoma, Oklahoma‘s Failure to Protect Law and the Criminalization of Motherhood (2020) <https://www.acluok.org/en/publications/oklahomas-failure-protect-law-and-criminalization-motherhood> [as of Jan. 6, 2025] (ACLU Oklahoma); all Internet citations in this opinion are archived by year, docket number, and case name at <https://courts.ca.gov/opinions/cited-supreme-court-opinions>.) Oklahoma enforces failure-to-protect liability by statute: “Any person responsible for the health, safety or welfare of a child who shall willfully or maliciously engage in enabling child abuse” may be convicted and sentenced to a term up to life imprisonment. (
I do not know of any comparable statewide data on the prosecution of parents in California under failure-to-protect theories. But a recent survey of 649 women representing 58.2 percent of women incarcerated in California for murder or manslaughter suggests that California is not immune from such gender disparities. (Stanford Criminal Justice Center, Fatal Peril: Unheard Stories From the IPV-to-Prison Pipeline and Other Voices Touched by Violence (2024) <https://law.stanford.edu/wp-content/uploads/2024/08/Fatal-Peril-Final.pdf> [as of Jan. 6, 2025] (Fatal Peril).) One respondent was away at work when her child was killed by an abusive male partner. (Id. at p. 106.) It does not appear she received leniency on account of her absence and lack of involvement, as the father did in Michael; she is presently serving a life sentence. (Ibid.) In her words: “My partner was really abusive and controlling. He would keep my son hostage in order to control me, besides threatening me and hurting me. . . . The abuse increased a lot during a small period of time until the fatal day that he was so high he killed my [child] while I was working. . . . My [child] was [a toddler] and I [am] the one receiving a life sentence for what he did.” (Ibid.) Another respondent whose male partner killed her daughter reported that the man is now free after being convicted as “an accessory after the fact” while she is serving a “lengthy indeterminate sentence.” (Id. at p. 105.) Many respondents were themselves victims of their partner‘s violence; two women reported having been beaten unconscious when their children were dealt the fatal blow. (Id. at pp. 106-107.)
I join today‘s opinion finding insufficient evidence to convict defendant Brittney Collins of second degree murder for the death of her son Abel at the hands of his father. (Maj. opn., ante, at p. 1.) I also agree that “a parent‘s failure to act can constitute an affirmative act for the purposes of criminal liability in some situations.” (Id. at p. 14.) I write to express concern that failure-to-act liability carries a significant risk of unfairly punishing women
Much of the disagreement over this case turns on views about what a “reasonable parent” in Collins‘s situation would have done. (Dis. opn., post, at pp. 3, 41-43.) Although the “reasonable parent” standard is the law, it is vital to acknowledge that the concept is highly susceptible to gender and class biases. (See Anthony, supra, 24 Geo. J. Gender & L. at p. 3 [“[I]n practice, ‘reasonable’ appears to mean something quite different for mothers than it does for fathers.“].) For example, do unwarranted expectations of a mother‘s “intuitive” awareness of danger to her child inform the analysis of Collins‘s knowledge of Abel‘s risk of death? (See Trozzo, Victim Blaming: Failure to Protect Laws as a Legislative Attack on Mothers (2021) 23 Geo. J. Gender & L. 79, 99 [“Mothers are presumed to intuitively know about abuse of their children, even if they never witness the abuse.“].) The risk of such bias is especially significant when it comes to children suffering harm from male partners, as in this case. (See Anthony, at p. 22 [“[T]he avoidance of risk to a mother‘s children is an element of idealized motherhood, where the responsibility is not only to care for children, but also to ‘avoid and manage male violence.’ When harm befalls children at the hands of men, it signifies a failure of the mother to predict, manage, and stop that violence.“], fn. omitted.) These gender biases are not theoretical; in this case, detectives repeatedly asked Collins what her ” ‘mother intuition [sic]’ ” and ” ‘gut as a mother’ ” were telling her about what happened to Abel. (Maj. opn., ante, at pp. 5-6.)
Also, one might question whether inferences of Collins‘s culpability are refracted through a lens that sees Abel‘s mother as his “natural” caregiver. (See Nevada Dept. of Human Resources v. Hibbs (2003) 538 U.S. 721, 736 [discussing “mutually reinforcing stereotypes” that women play “the role of primary family caregiver” while men “lack . . . domestic responsibilities“]; Panko, Legal Backlash: The Expanding Liability of Women Who Fail to Protect Their Children (1995) 6 Hastings Women‘s L.J. 67, 75 [“Within the nuclear family, it is still considered natural that mothers have a special bond with their children while fathers remain distant . . . .“], fn. omitted; Ginsburg, Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law (1997) 26 Hofstra L.Rev. 263, 266, 270.) It is difficult to imagine framing Collins as “allowing Norwood to care for Abel” (dis. opn., post, at p. 4) had the parents’ genders been reversed; fathers are not said to “allow” their children to be cared for by their mothers. (See, e.g., Michael, supra, 767 P.2d 193 [not once
The risk of bias is that Norwood‘s care for his son is viewed as a replacement for caregiving that Collins should have been doing. (See Garcia, The Gender Bind: Men as Inauthentic Caregivers (2013) 20 Duke J. Gender L. & Policy 1, 4 [“Often society sees men as ‘babysitting’ their own children and men must prove that they are actually providing care to be labeled caregivers. Otherwise, their care only replaces the care that the mother would otherwise be giving.“], fn. omitted.) This view was expressed by the detectives who told Collins: ” ‘[M]om‘s the person that watches the kid. Mom‘s the person that takes care of the baby. Mom‘s the person that protects their baby. Right?’ ” (Maj. opn., ante, at p. 5.)
Further, we might ask what socioeconomic assumptions inform analysis of the options reasonably available to Collins to remove Abel from his father. The dissenting opinion says the jury could have found that “a reasonable parent could and would have” forced Norwood to leave or “could and would have” left with Abel to escape Norwood. (Dis. opn., post, at pp. 42-43.) The dissent acknowledges that Collins would have also needed to relocate her grandmother and says there was evidence that her grandmother could have stayed with family or friends before Abel‘s death. (Id. at p. 43.)
Would it have been reasonable for the jury to have drawn these conclusions? In assessing the sufficiency of the evidence, I see nothing speculative about considering the reality that “financial dependence on a partner is a barrier for women of lower socioeconomic status who may not have the means to leave.” (Fatal Peril, supra, at p. 26; see Buel, Fifty Obstacles to Leaving, a.k.a., Why Abuse Victims Stay (1999) 28 Colo. L. 19, 20 (Buel) [“the number one reason cited [by victims of domestic violence] for returning to the batterer [was] financial despair” because the women were unable to provide for themselves or their children without the batterer‘s assistance].) Again, the concern is not theoretical: “Collins . . . reported that Norwood overdrew all of her bank accounts and that, consequently, she no longer had her own bank accounts.” (Maj. opn., ante, at p. 8; see Buel, at p. 20 [“Financial abuse is a common tactic of abusers.“].) On the day of Abel‘s death, Collins was applying for jobs in an apparent attempt to gain financial independence from Norwood that simply came too late. (Maj. opn., ante, at p. 10.)
Would it have been reasonable for the jury to have concluded that Collins had the support of friends or family willing and able to shoulder the burden of housing two additional adults and an infant? The evidence seems awfully
Finally, domestic violence presents “additional complexities in considering what reasonable steps can be taken for an abused parent to safely navigate around or leave an abusive co-parent.” (Maj. opn., ante, at p. 33; see ibid. [“the risk of being killed by one‘s abuser increases significantly when a victim of intimate partner violence attempts to leave their abuser” and “[t]his risk of femicide is heightened for postpartum women, such as Collins“].) Given those complexities, I find it a stretch to say the jury could have concluded beyond a reasonable doubt that Collins acted with implied malice toward Abel or proximately caused his death “because she valued her relationship with Norwood more than she valued Abel‘s wellbeing.” (Dis. opn., post, at p. 39; see id. at pp. 5, 33-34.) To say that Collins, who was unsafe and financially strapped, “prioritized” her relationship with her abuser (id. at p. 33) presumes a degree of volition that is not supported by “evidence which is reasonable, credible, and of solid value” (People v. Johnson (1980) 26 Cal.3d 557, 578).
The dissent contends that facts about the inability of women who are victims of domestic violence to leave their abusers were “not before the jury” and are thus “irrelevant to our substantial evidence review.” (Dis. opn., post, at p. 44, fn. 11.) Appellate review for sufficiency of the evidence, the dissent says, ” ‘is limited to considering the evidence actually presented to the jury.’ ” (Id. at p. 45, fn. 11.) No one disagrees with this hornbook rule. (Maj. opn., ante, at p. 7, fn. 2.) But substantial evidence review requires us to determine what inferences from the evidence are “reasonable,” and what is “reasonable” is a legal question informed by “[c]ommon sense . . . and an appropriate sensitivity to social context.” (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 82.) This is no less true here than in other contexts. (See, e.g., id. at p. 81 [severity of workplace harassment is “judged from the perspective of a reasonable person
The dissent ultimately concedes that “[t]he severe burdens suffered by victims of domestic or intimate partner violence are widely known” and “may be considered . . . by a reviewing court,” but says it is improper to consider the studies that have made those burdens widely known. (Dis. opn., post, at p. 44, fn. 11.)
The dissent cites no authority for this view, and case law supports the unremarkable proposition that reviewing courts need not and should not ignore either widely known facts or their empirical bases. (See, e.g., Miller v. Alabama (2012) 567 U.S. 460, 471 [relying on “what ‘any parent knows,’ ” backed up by “science and social science,” in explicating the diminished culpability of juveniles].) Indeed, venerable precedents of this court have done exactly what the dissent would disallow here. (See Perez v. Sharp (1948) 32 Cal.2d 711, 723-724 & fn. 6 [striking down California‘s anti-miscegenation laws and citing numerous empirical studies in discussing the “considerable reevaluation by social and physical scientists in the past two decades” of data purporting to correlate race and intelligence]; Sail‘er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 19-20 & fns. 19-20 [citing numerous empirical studies in documenting “legal and social disabilities” facing women and concluding that “sexual classifications are properly treated as suspect“].) The studies in Perez and Sail‘er Inn were not cited in any briefing before this court and by all indications were “raised for the first time by the court or its members.” (Dis. opn., post, at p. 44, fn. 11.) The dissent says those cases are “not analogous” (ibid.) but does not explain why courts may consider social science that underlies general knowledge in deciding some constitutional questions but not in deciding the due process issue here.
The reality is that intimate partner violence is a “common” occurrence affecting the parental relationships in which children are raised. (Centers for Disease Control and Prevention, Preventing Intimate Partner Violence (2022) <https://stacks.cdc.gov/view/cdc/124386/cdc_124386_DS1.pdf> [as of Jan. 6, 2025].) About one in three women report having experienced severe physical violence from an intimate partner in their lifetime. (Ibid.) Such violence constrains a parent‘s options and ability to protect her child, and it is appropriate to consider this social context in assessing what conclusions a
To be clear, I do not contend that Collins bears no culpability for Abel‘s tragic death. Collins may well have been guilty of a crime, such as felony child endangerment, an offense punishable by up to six years in prison. (
LIU, J.
We Concur:
GROBAN, J.
EVANS, J.
PEOPLE v. COLLINS
S279737
Concurring Opinion by Justice Kruger
I concur in the judgment and in parts I., II.A., II.B.1., II.C., and III.
KRUGER, J.
PEOPLE v. COLLINS
S279737
Dissenting Opinion by Chief Justice Guerrero
The majority characterizes this matter as a “close case” (maj. opn., ante, at p. 1), and it may have been — for the jury. The jury was tasked with sorting through the medical evidence, understanding the circumstances of two-month-old Abel‘s death, determining what defendant Brittney Collins knew about Matthew Norwood‘s abuse, and ultimately making its best judgment about Collins‘s ability to protect Abel from further abuse and about her state of mind when she failed to do so. But when the jury‘s verdict is challenged for lack of evidence, what might appear to be a close case for the jury is a straightforward case on appeal.
An appellate court does not ” ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 (Jackson); accord, People v. Mumin (2023) 15 Cal.5th 176, 198 (Mumin).)
The majority fails to observe this distinction. In reversing the judgment, the majority credits evidence the jury could reasonably disbelieve, it resolves
Contrary to the majority‘s position, when viewed through the lens of the correct standard of review, the jury‘s verdict is amply supported by the evidence. The majority focuses on the alternate theory of aiding and abetting, but the prosecution‘s primary theory at trial was Collins‘s liability as a direct perpetrator of implied malice murder. The basic substantive elements of that crime are — or should be — undisputed: A defendant is liable for implied malice murder as a direct perpetrator “when ‘the killing is proximately caused by ” ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” ’ ” (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) Although the majority wrongly grafts an additional element onto this established standard, it is clear that a reasonable jury could find each Reyes element beyond a reasonable doubt based on the evidence presented at trial.
We have long recognized that the breach of a parental duty of care may supply the act necessary for criminal liability, including for murder. (People v. Heitzman (1994) 9 Cal.4th 189, 198 (Heitzman).) As the majority confirms, a parent breaches this duty of care when the parent fails to take every step reasonably necessary under the circumstances to protect his or her child from harm. (Maj. opn., ante, at p. 14.) The jury here could reasonably find that Collins did not take every reasonably necessary step to protect Abel. Given the magnitude of the threat facing Abel — discussed below — a reasonable parent in Collins‘s situation would not have allowed Norwood to care for Abel while he was abusing methamphetamine. A reasonable parent would have either cared for Abel
The jury could also reasonably find that the natural consequences of Collins‘s failure to protect Abel from Norwood were dangerous to Abel‘s life. Indeed, defense counsel conceded this element at trial. This concession was well taken. The evidence showed that Norwood was skeptical that Abel was his son, he threatened Abel‘s life before he was born, he brutally assaulted Collins while she was pregnant, and he repeatedly and severely abused Abel during his short life. Norwood was more likely to act violently and abuse Abel when using methamphetamine, and Norwood was high and angry and violent on the day of the fatal attack. Based on Abel‘s vulnerable state, Norwood‘s lethal threats, and the severe abuse he had already inflicted, Norwood‘s care involved a high degree of probability of Abel‘s death — which, tragically, did in fact occur.
It was likewise reasonable for the jury to find that Collins knew her failure to protect Abel endangered his life. Collins knew all of the facts that made Norwood‘s care so dangerous: his drug use, his violence, his threats, and his brutal and repeated abuse of Abel. Collins admitted she saw Norwood shaking Abel, choking him, smacking him, “bounc[ing]” him, “thump[ing]” him, and crushing his body with such force that Collins knew Abel could fracture a rib. In her briefing, Collins acknowledges that she admitted to police “that she knew Norwood had previously assaulted Abel enough to cause serious injury.” Collins also knew Abel was a fragile and vulnerable infant. She had been specifically informed following Abel‘s birth that shaking or squeezing him too hard risked serious injury or death. This evidence is more than sufficient to support the jury‘s finding that Collins knew that allowing Norwood to care for Abel not only risked serious injury, as she admitted, but endangered Abel‘s life as well.
The same facts suffice to support the jury‘s finding that Collins acted with conscious disregard for life, since Collins failed to protect Abel notwithstanding her knowledge of the risk presented by Norwood‘s care. But Collins‘s actions after the fatal attack provide additional support. After Norwood‘s final act of abuse — which caused a loud bang with no crying afterward — Collins did not check on Abel for over an hour, even after Norwood left their home oddly and in a hurry. Although Collins was distraught by Abel‘s condition, and she immediately suspected Norwood, she acted to protect Norwood rather than assist medical professionals or the police investigating Abel‘s injuries. When Collins and Norwood faced questioning, Collins told Norwood she
Because the evidence supports Collins‘s liability for implied malice murder based on her own failure to protect Abel, and no other error appears, it is unnecessary to address whether Collins would also be liable as a direct aider and abettor. (People v. Ghobrial (2018) 5 Cal.5th 250, 278 (Ghobrial).) The judgment against Collins should be affirmed, and I respectfully dissent from the majority‘s contrary conclusion.
I. STANDARD OF REVIEW
In a potentially close case, it is all the more important to faithfully apply the standard of review. When the jury‘s verdict is attacked for lack of evidence, the standard of review is not a mere academic matter. It respects the essential role and responsibility of the jury to determine which evidence to believe and to decide which reasonable inferences based on the evidence should be credited. (Jackson, supra, 443 U.S. at p. 319.) For an appellate court to “resolve conflicts in the evidence and weigh the testimony of witnesses” would be ” ‘a clear usurpation of the jury‘s exclusive function.’ ” (Mumin, supra, 15 Cal.5th at p. 202.) Twelve jurors heard the evidence, watched Collins and Norwood testify, and deliberated among themselves to reach their verdict. The standard of review ensures their view of the evidence is given due deference. We will reverse only in extreme cases, where the jury acted unreasonably or irrationally, and its view of the evidence finds no reasonable support in the record.
The majority provides a basic statement of the standard: “In considering a sufficiency of the evidence claim, we review ‘the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (Maj. opn., ante, at p. 12, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) The majority also properly cautions against relying on suspicion, surmise, or conjecture. (Maj. opn., ante, at pp. 12-13.) But, other than viewing the record in the light most favorable to the judgment, the majority says little about how our role on appeal differs from the jury‘s role.
Under the law, our role differs from the jury‘s role quite significantly. ” ’ “We resolve neither credibility issues nor evidentiary conflicts; we look
These principles lead to an especially limited role where the prosecution relies on circumstantial evidence, such as to prove a defendant‘s state of mind. ” ‘Evidence of a defendant‘s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055People v. Westerfield (2019) 6 Cal.5th 632, 713 (Westerfield).) ” ’ ” ’ ” ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant‘s guilt beyond a reasonable doubt. ” ‘If the circumstances reasonably justify the trier of fact‘s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ” ’ ” ’ ” (Ghobrial, supra, 5 Cal.5th at p. 278.) “As we recognized long ago, ‘[i]t may be confidently declared that, founded upon the evidence, the jury not only is authorized to make any logical and reasonable deduction, but also that the jury is the exclusive judge of the weight and value of the inference that may be drawn by it . . . .’ ” (Mumin, supra, 15 Cal.5th at p. 202.)
Significantly, under the standard of review, an appellate court must set aside its own view of the strength or believability of the evidence. For example, the appellate court cannot reject evidence the jury could reasonably have credited. “ ‘ “To warrant the rejection of the statements given by a witness who has been believed by a trial court [or jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482, 519.) Moreover, the appellate court cannot credit evidence — even uncontroverted evidence — that the jury could reasonably have rejected. “The jury . . . is the sole judge of the credibility of the witnesses [citations] and is free to disbelieve them even though they are uncontradicted if there is any rational ground for doing so.” (Blank v. Coffin (1942) 20 Cal.2d 457, 461; accord, In re Jessica C. (2001) 93 Cal.App.4th 1027, 1044.)
The majority fails to describe these principles and, more importantly, fails to apply them in its assessment of the jury’s verdict. As explained further below, the majority’s flawed conclusion is directly attributable to these errors.
II. STATE OF THE EVIDENCE
In its factual and procedural background, the majority begins by synthesizing the evidence into a coherent story. (Maj. opn., ante, at pp. 1–5.) In relating the circumstances of Collins’s pregnancy and Abel’s death, the majority does not describe the specific testimony or physical evidence as it was formally presented at trial, e.g., via the testimony of a police detective, Collins’s interview with police, or medical records. Although I have no quarrel with this approach as a general matter, such a synthesis must be carefully drafted to ensure it conforms to the principles of substantial evidence review described above. For example, it must describe the facts in the light most favorable to the jury’s verdict, and it cannot accept as true evidence or inferences the jury did not have to believe. Otherwise, the synthesis may reflect the reviewing court’s own view of the evidence and the inferences to be drawn therefrom, rather than the evidence and inferences a reasonable jury could have believed in reaching its verdict.
The synthesis offered by the majority falls on the wrong side of this divide. It consistently credits exculpatory evidence — primarily Collins’s own testimony — while omitting or minimizing evidence and reasonable inferences that support Collins’s guilt. For example, the majority accepts as true Collins’s testimony at trial that she demanded Norwood move out the morning of the fatal attack on Abel (and that Norwood was actually doing so). But the jury did not have to believe this testimony. Collins did not mention this fact in her interviews with police, and Norwood denied it.
Following its synthesis, the majority summarizes Collins’s interviews with police and her testimony at trial, along with other evidence before the jury. But this summary, too, is skewed in favor of Collins. Its labored justification for failing to acknowledge that Collins saw Norwood “choke” Abel — despite Collins’s statement to police that what she saw “ ‘doesn’t look like choking,
The majority’s factual background is therefore inadequate to assess the evidentiary support for the jury’s verdict. It obscures rather than illuminates the factual findings and reasonable inferences the jury could draw from the evidentiary record. I offer the following corrective below, viewing the record in the light most favorable to the judgment and summarizing the key facts a reasonable jury could credit. This summary shows how a reasonable jury could have convicted Collins of implied malice murder, and why the jury’s verdict should not be overturned by a reviewing court for lack of evidence.
The evidence showed that Norwood was a daily methamphetamine user who was mean, angry, and violent, especially when under the influence. The majority acknowledges Collins used methamphetamine as well, though it emphasizes her claim that she stopped using while she was pregnant. (Maj. opn., ante, at p. 1.) The majority elides the fact that a reasonable jury could find that her abstention was at best only temporary. Collins told police she used methamphetamine at least once after Abel was born.
Norwood and Collins were in a relationship when Collins became pregnant, but Norwood did not believe Abel was his biological son — another fact the majority omits. Collins testified that Norwood brought it up “quite a few times” and “would say Abel wasn’t his.” Collins said that neighbors told Norwood that Abel was not his son, and even a family member agreed.
Norwood stated multiple times he did not want to be a father and he wished Collins were not pregnant. Once, when he said he did not “want to be a dad,” he “jabb[ed]” at Collins’s pregnant stomach with a screwdriver, causing Collins to “[take] off running” and profess that she wanted to keep the baby. When Collins was eight or nine months pregnant, Norwood told her he “would make sure Abel wasn’t born, like try to make [her] lose him.” Norwood told a neighbor of his intent to kill Abel as well, stating “I don’t want that fucking baby. She should abort the goddamn baby. I don’t want to be a damn dad. We should kill that baby.” The jury could reasonably find Norwood’s malicious statements especially significant because they occurred at such a late stage in Collins’s pregnancy.
Norwood assaulted Collins while she was pregnant, including acts specifically directed at Abel. Norwood choked Collins, pushed her down, and kneed her in the stomach. Collins admitted to police she knew Norwood was trying to make her lose Abel.
At home, after Abel’s discharge, Norwood was angry and physically abusive toward the newborn, consistent with Norwood’s prior threats and violence. Collins told police Norwood would “get mad” at normal behavior like Abel “not go[ing] to sleep” or crying “too long.” Norwood would be really agitated and upset, “more than . . . you should be at a baby.” Although the majority tries to minimize Norwood’s abuse, Collins told police she saw Norwood “smack[]” Abel, shake him back and forth, hit his head on furniture, “chok[e]” him, and “bounce” him too hard. She saw Norwood cover Abel’s mouth repeatedly to keep him from crying. Collins saw Norwood grab Abel’s leg too hard and flip him over. Collins told police Norwood would “roll [Abel] over by his leg” all the time. Indeed, Collins said she noticed Abel’s leg was swollen the day before Norwood’s fatal abuse.1
Once, Collins walked in and saw Norwood with his hand raised, about to hit Abel in the head. Collins said, “It looked like he could’ve been hitting him.” Abel’s eyes “were really red” and “swollen.” Later, Collins told police, “[E]ven though I haven’t seen [Norwood] physically hit [Abel], I know he did it because of all those small things.”
Most seriously, Collins admitted she witnessed Norwood push down on Abel’s chest with enough force to break his ribs, while shaking Abel’s head back and forth. Abel was screaming and crying. Medical scans later confirmed that Norwood’s abuse had caused Abel to fracture seven ribs. At trial, a doctor testified that these rib fractures “are very clearly associated with violent shaking of an infant” and “extreme chest compressions most often during an extremely violent shaking process to the infant, such that the ribs snap along the back near the spine.”
During the week or two prior to Norwood’s fatal abuse, Collins heard five to six loud “thumps” when Norwood was caring for Abel alone. It sounded like something “smack into” something else. After each thump, Abel would
On the day of the fatal abuse, Norwood was high on methamphetamine. Collins saw Norwood use methamphetamine that morning, as well as the day before and likely the day before that. At trial, Collins testified that she and Norwood had argued that morning, and Norwood had become violent, breaking her phone. Collins’s grandmother testified she was scared of Norwood that day.
Collins knew Abel was fussier than normal since he had received several vaccinations the day before. While Collins was on the couch, Norwood insisted that he care for Abel and give him his bottle. Collins told police that it was “weird” that Norwood “wanted to take care of him so much” because Collins normally cared for Abel. At trial, Collins admitted she knew Norwood was still high on methamphetamine, but Collins allowed him to take Abel anyway.
Norwood carried Abel into his room, and Collins heard a “loud bang” similar to other times when Norwood took care of (and abused) Abel. This time, however, Abel did not make any sound afterward. Collins told police, “All the sudden, he’s just quiet even though I hear a loud bang? That’s not normal.” Collins said that Norwood left afterward, “real antsy” and in a hurry.2 But Collins remained on the couch. She only checked on Abel an hour later, and she then found him in acute distress. Collins picked Abel up and ran to her grandmother and then to a neighbor’s house. When an ambulance arrived, Collins “changed [clothes] really fast and [she] went into the ambulance” with a paramedic.
After they arrived at the hospital, medical personnel quickly found evidence that Abel had been seriously abused. As the majority explains, police searched Collins’s grandmother’s house, and they recorded a conversation between Norwood and Collins in a police car while they waited. (Maj. opn., ante, at p. 5.) During the conversation, Norwood told Collins he loved her and said, “Just making sure you know that. I’d never do anything to throw you under the bus or anything like that.” Collins responded, “Babe, I’m not gonna throw you under the bus.” Later, Norwood said, “I know you’re scared baby but no matter what, I love you. They’re trying to get me for this not you.” Collins replied, “There’s nothing to be scared about. We didn’t do anything.”
Collins repeatedly suggested to police that her grandmother might have dropped Abel and been responsible for his injuries. Collins said her grandmother had been violent when she was young and she “lied to the family before about stuff.” Collins suggested a former boyfriend might also be responsible. She said her former boyfriend had been physically abusive when they were together.
Later, a detective asked Collins, “for Abel’s own sake and his protection, will you tell me what happened to him?” Collins responded, “I don’t know. I doubt his dad [did] anything to him.” She claimed, “I want to figure it out and know as much as you guys do.” She continued to deny Norwood was responsible, but she said if he were responsible he should attend parenting classes.
Collins eventually acknowledged she had been withholding information from the detectives. She told them that Norwood had “a record” and she did not want anything to happen to him. Collins said Norwood told her to blame her grandmother. She said she “just wanted to protect” Norwood. A detective asked, “Who are you more afraid of losing,” Abel or Norwood? Collins responded, “At this point, both. Abel cause he’s my baby and he’s the only baby. And then, [Norwood] — he’s the only person that actually man wise who I’ve loved and cared about.” Collins admitted the syringe was not hers. Instead, it was Norwood who was a heavy methamphetamine user. Still, Collins denied that Norwood had abused Abel. She said only that his drug use might have caused him to make a “mistake.”
During Collins’s second interview, she disclosed that Norwood had been convicted of domestic abuse against a former girlfriend, but she initially denied that Norwood physically abused her. Over time, however, Collins acknowledged the violence during her pregnancy and abuse of Abel described above. Collins more squarely admitted Norwood might be responsible, while claiming she was helpless. She told the police “it had to be [Norwood]” because if they “could watch me open a water bottle[,] I can barely open it.” Collins later repeated, “Like I told you, I can barely open a water bottle. Half the time, I have to ask somebody.”
In a third interview, Collins expressed regret for her inaction. She told detectives, “I should have told [Norwood] to leave [Abel] alone. Leave him next to me. I should have told [Norwood] to leave sooner.” When detectives asked Collins if she felt like she failed to protect Abel, she responded, “A little bit,” and she explained, “If I would have told [Norwood] to leave sooner or called the police sooner, Abel wouldn’t be hurt.”
At trial, however, Collins changed her story. She said she lied to police about Norwood’s abuse of Abel. She testified that she never saw Norwood bump Abel into things, put his hand over Abel’s mouth, squeeze him, or otherwise abuse him. She told the jury the loud bangs she heard were “actually the bassinet hitting the totes on the side of the room.” Collins said she would “[d]efinitely” have called police if Norwood had hit Abel.
Collins also denied that Norwood was violent toward her. She said she “[m]ore than likely” would have called police if Norwood had hit her. Collins admitted that Norwood used methamphetamine frequently and had “rage” or anger. When the prosecutor asked why Collins would allow a drug abuser with rage around her son, Collins responded that she needed Norwood’s income and help around the house. She said, “I still needed help to get up. I couldn’t carry a glass of water by myself.”
Collins denied illegal drug use herself. She said that she tried marijuana once and “almost choked to death,” but otherwise she had never used.
Collins admitted she lied to police about the syringe and her grandmother’s possible responsibility for Abel’s injuries. But she denied that she was trying to protect Norwood from law enforcement. On cross-examination, Collins acknowledged that Norwood had done “little stuff” to her while she was pregnant, like pushing her down, kneeing her stomach, and choking her one time. She testified that Norwood had kicked her in the face accidentally while
Collins professed that she loved Abel more than Norwood, but she acknowledged she “stood up for [Norwood] at every turn.” Collins admitted that her statements to police during her first interview showed she cared more about Norwood than Abel. She said her lies affected everyone, and “Abel the most.”
In his closing argument, the prosecutor primarily contended that Collins was guilty of implied malice murder as a direct perpetrator. He told the jury, “We have a two-month-old child left to the devices of an abusive, violent, drug-addict boyfriend who was full of rage. . . . [¶] At the time of the act, [Collins] knew her failure to act was dangerous to human life. Anyone would know that those acts are dangerous to human life. It’s a two-month-old child. Common sense dictates you know what you’ve seen, what she said she saw, is dangerous to a two-month-old child. She sees violent shaking, choking, hand over mouth, banging into objects, a two-month-old child. [¶] She deliberately failed to act with a conscious disregard for human life. Again, consider the knowledge she had. This is knowledge only two people have, her and Matthew. How violent Matthew Norwood was. The injuries he inflicted on her during pregnancy. The threats made against her, against Abel, the rage, the out-of-control drug use, the slamming dope. [¶] It’s akin to putting Abel in front of a moving car and saying have at it, knowing all of those things.”
While defense counsel agreed that Norwood’s care was life-endangering, he argued that Collins had no reason to believe Norwood would be violent. He minimized Collins’s statements about her own abuse: “Now, Brittney also told you there was some, what we called, domestic violence in the house. Like a lot of young couples, they say and do mean things, regret it later. That’s what I think happened here.” And defense counsel contended that Collins thought Norwood was a good father: “[T]his is what she saw. Here’s a guy that went through planned parenting, went along with her to get drugs to conceive the baby, went to classes. He was trying to improve.” He continued, “She saw [Norwood] as a guy who was taking care of the baby. . . . For two solid months he was doing well, very well, and for some unknown reason snaps. That’s not Brittney’s fault.” Norwood “went berserk just like that and nobody knew that was coming.”
The jury rejected this defense and convicted Collins of second degree murder and assault with force likely to cause great bodily injury. (Maj. opn.,
The Court of Appeal found Collins’s actions after the fatal attack relevant as well: “Even after [Collins] heard a loud and troubling bang from the room where Norwood was caring for Abel alone and no corresponding cry from Abel, defendant did nothing; she remained on the couch until long after Norwood left the family home in an antsy and atypical manner before belatedly checking on her son’s well-being. Then, following Abel’s hospitalization, defendant protected Norwood (at his direction) by lying to the police about sundry matters: the hypodermic needle, the possibility of [Collins’s grandmother] being responsible for Abel’s injuries, and Norwood’s prior abuse of her and her infant son.” It concluded, “From this and other evidence presented that we find it unnecessary to summarize, a reasonable juror could find defendant, by inaction and even some affirmative actions, knowingly failed to protect her son and thereby aided and abetted Norwood’s murder of Abel.”
III. IMPLIED MALICE MURDER
Although the Court of Appeal relied on the theory of aiding and abetting, as noted the prosecutor primarily argued to the jury that Collins was liable as a direct perpetrator of implied malice murder. Sufficient evidence under either theory would generally be enough to sustain a conviction. “The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508 (Cravens).) Consistent with the prosecutor’s approach, I focus on Collins’s liability as a direct perpetrator.
The basic elements of implied malice murder as a direct perpetrator are well settled: “Murder is committed with implied malice when ‘the killing is proximately caused by “ ‘an act, the natural consequences of which are
A. Evidence of a Culpable Mental State
The majority concludes there was insufficient evidence of Collins’s mens rea, or culpable mental state, to support her conviction as a direct perpetrator of implied malice murder. (Maj. opn., ante, at pp. 35–36.) As just stated, this mens rea element requires that the defendant “ ‘ “ ‘knows that his [or her] conduct endangers the life of another and . . . acts with conscious disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988; accord, People v. Knoller (2007) 41 Cal.4th 139, 143 (Knoller).)
Despite our recent reaffirmation of this articulation in Reyes, and the majority’s recitation of identical language from Knoller (maj. opn., ante, at p. 35), the majority goes on to immediately disregard it. It finds the mens rea element lacking because, in the majority’s view, where a defendant’s prosecution is based on a failure to protect, the defendant must “know[] to a substantial degree of certainty that another’s life-endangering act is occurring or is about to occur and fail[] to take reasonable steps to intervene in the face of such an act.” (Maj. opn., ante, at p. 36, fn. 9.) Although the majority asserts it is “applying decades of precedent,” it cites no authority for adding an element to the established standard of implied malice in this context. (Ibid.)
To the contrary, decades of precedent establish that culpability for implied malice murder based on a failure to act — including a failure to protect — rests “upon state-of-mind factors applicable generally” to crimes of homicide. (1 LaFave, Substantive Criminal Law (3d ed. 2018) § 6.2(e), pp. 607–608.) The applicable form jury instructions — including those given to the jury here — likewise do not distinguish between an affirmative act and a failure to act by a defendant under a duty to do so. (See CALCRIM No. 520; see also CALJIC No. 8.31.)
The Courts of Appeal have repeatedly recognized this principle, including specifically in the context of a parent’s failure to protect. For example, in People v. Burden (1977) 72 Cal.App.3d 603, 614 (Burden), the defendant argued that he could not be convicted of murder based on his failure to adequately care for his infant son. The Burden court disagreed. Consistent with “ ‘numerous authorities in England and the United States,’ ” Burden held that “[t]he omission of a duty is in law the equivalent of an act and when death results, the standard for determination of the degree of homicide is identical.” (Id. at p. 616.) In a similar context, People v. Latham (2012) 203 Cal.App.4th 319, 327 (Latham) held, “The ‘omission of a duty is in law the equivalent of an act . . . ’ [citation], and thus, a defendant’s failure to perform an act that he or she has a legal duty to perform is identical to the defendant’s affirmative performance of an act.” Most recently, in People v. Werntz (2023) 90 Cal.App.5th 1093, 1115, review granted August 9, 2023, S280278 (Werntz), which involved a failure-to-protect murder prosecution, the court explained, “Passive conduct or omissions may satisfy the actus reus component of murder where the person is under a duty to act. [Citations.] And the failure to perform an act that one has a legal duty to perform is legally equivalent to performance of an act.”
Our opinion in Heitzman, supra, 9 Cal.4th 189, approved of this line of authority. Although the majority here purports to “join the majority of our sister courts in recognizing a parent’s failure to act can constitute an affirmative act for the purposes of criminal liability in some situations” (maj. opn., ante, at p. 14), Heitzman already recognized such a rule. We explained, “When a criminal statute does not set forth a legal duty to act by its express terms, liability for a failure to act must be premised on the existence of a duty found elsewhere.” (Heitzman, at p. 198.) We identified, as one example, that a criminal statute may “embody a common law duty based on the legal relationship between the defendant and the victim, such as that imposed on parents to care for and protect their minor children.” (Ibid.) For that proposition, we approvingly cited Burden, with the parenthetical explanation that Burden involved a “murder defendant father under [a] common law duty to care for [his] young son.” (Heitzman, at p. 198.)
In the absence of any explanation or citation to authority, one must guess at the basis for the majority’s departure from the established implied malice standard. The additional element required by the majority appears similar to the mens rea standard required for a direct aider and abettor of an implied malice murder. (See Reyes, supra, 14 Cal.5th at p. 991 [mens rea requirement includes “ ‘knowledge that the perpetrator intended to commit the act’ ” and “ ‘knowledge that the act is dangerous to human life’ ”].) But direct aiding and abetting is a different theory, and its elements are tailored to its unique context. The heightened mens rea requirement compensates to some extent for a lesser actus reus requirement. For example, a direct aider and abettor need not personally commit a life-endangering act to be liable for implied malice murder, whereas a direct perpetrator must do so. (Compare Reyes, at p. 991 [actus reus for an aider and abettor “ ‘includes whatever acts constitute aiding the commission of the life-endangering act’ ”] with id. at pp. 988–989 [actus reus for a direct perpetrator requires “ ‘ “ ‘an act, the natural consequences of which are dangerous to life’ ” ’ ” or which “ ‘ “involve[s] a high degree of probability that it will result in death” ’ ”].) A direct aider and abettor’s act also need not proximately cause the victim’s death, whereas a
Moreover, the established mens rea requirement for a direct perpetrator already reflects a high degree of culpability. A parent must know that his or her failure to protect endangers the life of the child, and the parent must act with conscious disregard for life. (See Reyes, supra, 14 Cal.5th at p. 988.) A person who harbors such a mental state is properly held liable for murder in this context just as in any other context, assuming the remaining elements of implied malice murder are also satisfied.
The majority’s departure from the established implied malice standard is all the more concerning because the majority has done so in the absence of any briefing by the parties on this issue. Collins did not raise this issue in her petition for review, and neither party advocated for a new or different standard. The parties’ briefing was limited by this court to the question of substantial evidence. Collins has never contended that the murder instructions provided to her jury, including CALCRIM No. 520, were erroneous. The majority errs by raising and deciding this apparently dispositive issue on its own accord. (See
Under the established standard, the evidence supported the jury’s finding that Collins harbored the mental state required for implied malice murder, i.e., she knew her failure to act endangered Abel’s life and she acted in conscious disregard for life. Collins knew Abel was a fragile two-month-old infant who had spent time in the NICU at birth. Based on her own admissions, Collins knew Norwood was a violent methamphetamine addict who had threatened Abel’s life, did not believe Abel was his son, quickly became angry whenever Abel exhibited normal behaviors, and had severely
In her briefing, Collins concedes she admitted to police that “she knew Norwood had previously assaulted Abel enough to cause serious injury.” The majority likewise admits, “There was certainly a reasonable inference that Collins knew Norwood’s care posed a high risk of serious injury to their child.” (Maj. opn., ante, at p. 25.) A reasonable jury could look at the facts and go further. With a history of abuse severe enough to cause serious injury, a jury could readily infer that allowing Norwood to care for Abel risked life-threatening abuse as well. Abel was a fragile two-month-old infant, and the jury could reasonably find that abuse causing serious injury also threatened Abel’s life. It could also reasonably find that Collins would make the same connection: “It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [the defendant] was aware of the risk.” (People v. Moore (2010) 187 Cal.App.4th 937, 941.) In addition, the jury heard evidence that Collins was educated (she had an associate’s degree in criminal justice administration) and that she had been specifically instructed regarding the risk of death from shaking or otherwise abusing an infant. The jury could reasonably find that Collins subjectively knew Norwood’s abuse threatened Abel’s life.
On the day of the fatal abuse, this danger was acute. The jury could reasonably find that Collins knew Norwood was high on methamphetamine, and she knew Norwood was even more likely than usual to lash out violently against Abel because Abel was fussy. Norwood had argued with Collins and become violent, breaking her phone. The jury could reasonably conclude that Collins knew she was endangering Abel’s life by allowing Norwood to care for Abel under these circumstances.4
The majority also confusingly states that “even if Norwood’s anger towards Collins could support an inference about Collins’s knowledge of the danger Norwood posed to Abel, it would presumably also raise an even stronger inference about the danger Norwood posed to Collins.” (Maj. opn., ante, at p. 23.) But the jury did not have to follow this reasoning or believe the threat posed by Norwood was symmetrical. Instead, the jury could have believed Norwood posed a much greater threat to Abel. Collins minimized her own abuse at trial, and the jury could reasonably have believed that Norwood’s anger that day would find expression in severe physical violence toward Abel, not Collins.5
The majority asserts that Norwood’s prior abuse was “different in kind from Norwood’s fatal act” (maj. opn., ante, at p. 36), but the majority does not explain how any alleged difference could affect Collins’s perception of the risk when she allowed Norwood to care for Abel that day. Regardless of the character of Norwood’s final act of abuse, a reasonable jury could find that Collins knew Norwood’s care endangered Abel’s life based on the facts known to Collins prior to that final act. For example, the fact that Norwood’s fatal abuse caused external injuries does not mean that Abel’s prior internal injuries were inconsequential. The majority claims that “the record does not support a conclusion that Collins was aware that Norwood had caused serious injury to Abel prior to the fatal act.” (Maj. opn., ante, at p. 37, fn. 10.)
The majority apparently concludes the jury was required to believe the nurse practitioner’s testimony in the absence of evidence that she “abrogated her duties while repeatedly examining Abel and lied while testifying.” (Maj. opn., ante, at pp. 26–27, fn. 7.) The implications of the majority’s conclusion are startling. Juries are commonly called upon to consider the credibility of medical professionals. Under the majority’s reasoning, a jury would be required to credit the testimony of a medical professional, no matter how self-serving, unless specific evidence of lying or other breach of duty were presented. That is not the law. A jury may disbelieve a witness for any rational reason, including the witness’s “demeanor while testifying” and the “existence or nonexistence of a bias, interest, or other motive.” (
In any event, even if the jury had accepted the nurse practitioner’s testimony at face value, the jury could reasonably have given this evidence little or no weight in determining Collins’s state of mind. It could reasonably believe that the nurse failed to notice external injuries on Abel, either through negligence or because Collins failed to disclose the abuse she had witnessed. And, even if Abel had no external injuries, that circumstance does not foreclose the reasonable inference that Collins knew Norwood’s care threatened Abel’s life in light of the threats, violence, and abuse Collins had actually witnessed — including Collins’s own admission that she witnessed abuse sufficient to cause serious injury to Abel. By elevating the nurse practitioner’s testimony over contrary evidence, the majority fails to respect “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Jackson, supra, 443 U.S. at p. 319; accord, Mumin, supra, 15 Cal.5th at p. 198.)
The majority asserts it would be “far reaching and without precedent” to conclude that “a parent (or any other individual with a duty to protect a child) can be held liable for murder if they have witnessed a past act of child abuse and the child is later killed.” (Maj. opn., ante, at pp. 36–37, fn. 10.) I agree. But “witness[ing] a past act of child abuse” and the fact of a “later kill[ing]” come nowhere close to describing the evidence in this case or the elements of implied malice murder the jury was required to find in order to convict Collins.
A reasonable jury could also find that Collins acted with conscious disregard for life. Collins knew the risk that Norwood posed to Abel, but she allowed Norwood to care for Abel anyway. After the final act of abuse, Collins aligned herself with Norwood, not Abel. When Collins heard the loud
The jury could then reasonably find that Collins acted to protect Norwood, rather than assist medical professionals treating Abel or police investigating his injuries, even though Collins immediately thought Norwood was responsible. Instead of being angry with Norwood, Collins told Norwood she would not “throw [him] under the bus,” took responsibility for a syringe found in their home, denied Norwood’s abuse of Abel to police, and callously placed the blame for Abel’s death on her grandmother. When a detective asked Collins who she was more afraid of losing, Norwood or Abel, Collins said “both” — she did not choose Abel. At trial, Collins agreed she “stood up for [Norwood] at every turn.” Based on this evidence, a reasonable jury could infer that Collins had “stood up for [Norwood]” prior to the fatal abuse as well, consciously disregarding the risk of Norwood’s care in order to maintain her relationship with him.
The majority focuses on other evidence, and it claims “[t]he facts of this case stand in stark contrast to other cases in which a parent knew of the danger posed to their child’s life and failed to act due to a lack of concern as to whether the victim lived or died.” (Maj. opn., ante, at p. 37.) The majority’s approach is flawed.
First, the majority ignores our repeated admonition that, in considering the sufficiency of the evidence, “comparison with other cases is of limited utility, since each case necessarily depends on its own facts.” (People v. Thomas (1992) 2 Cal.4th 489, 516.) We must focus on “the unique facts and inferences present in each case,” rather than make comparisons between cases. (People v. Rundle (2008) 43 Cal.4th 76, 137; accord, People v. Smith (2005) 37 Cal.4th 733, 745.) Such comparisons are especially unhelpful where, as here, the prior cases found the evidence sufficient. The evidence in such cases does not establish a floor that must be met in order to support a judgment; the evidence in those cases may (and here did) far exceed the minimum necessary to sustain a judgment. Where the evidence supports the required elements in the case at bar, “the attempt to contrast this case with others falls short.” (People v. Mendoza (2011) 52 Cal.4th 1056, 1075.)
Second, the
Third, the jury was not required to believe the evidence credited by the majority. For example, a reasonable jury could believe Collins was lying about “taking Abel away from Norwood when she believed Norwood was being too rough” and “telling Norwood to move out the very morning that Abel was killed.” (Maj. opn., ante, at p. 38.) At various times, Collins had lied about nearly every fact or circumstance at issue in this proceeding. The jury could reasonably believe Collins’s exculpatory statements were lies as well. As another example, the majority writes, “Importantly, Collins (and her grandmother) observed no signs of physical injuries prior to the fatal act.” (Maj. opn., ante, at p. 26, italics added.) But it was up to the jury to determine whether this testimony was important, or whether instead it should simply be discounted, disregarded, or disbelieved. It was obviously self-serving, and it contradicted Collins’s explicit admission that she had noticed physical injuries: a swollen leg (likely from Norwood roughly turning Abel over) and red, swollen eyes (likely from Norwood striking him). In any event, Collins’s knowledge of Norwood’s lethal threats, violence, drug addiction, and prior severe abuse support the reasonable inference that she knew his care threatened Abel’s life, regardless of whether Norwood’s prior abuse caused any noticeable external injury.7
Contrary to the majority’s position, “[t]he jury was not compelled to credit the defense version” of the relevant events. (Cravens, supra, 53 Cal.4th at p. 510.) It could instead have looked skeptically at Collins’s exculpatory statements and testimony, and it could have believed that even Collins’s incriminating admissions understated her awareness of Norwood’s abuse of Abel. The jury watched Collins testify, and it heard her recorded interviews with police and her conversation with Norwood. The jury was in the best position to determine Collins’s credibility, and it was the jury’s “ ‘exclusive province’ ” to do so. (Mumin, supra, 15 Cal.5th at p. 202.) For both practical and legal reasons, we must defer to the jury’s credibility determinations. We must reject any temptation to make such determinations ourselves, based on the cold record before us.
Our standard of review requires this court to ask how the jury could have viewed the evidence, drawing all reasonable inferences in favor of the jury’s verdict. It does not allow this court to ask how it would have viewed the evidence or whether it would have found the defendant guilty beyond a reasonable doubt. The majority ignores this distinction.8
B. Evidence of a Sufficiently Dangerous Act
As noted, the actus reus or objective component of implied malice murder required the jury to find that Collins’s failure to protect Abel was dangerous to life. This component of implied malice requires that “ ‘ “ ‘the natural consequences of [the failure to protect] are dangerous to life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988.) In other words, “To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must ‘ “involve[] a high degree of probability that it will result in death.” ’ ” (Id. at p. 989.) Although the majority finds it unnecessary to consider this element, I would conclude that the evidence was sufficient.
In her briefing, Collins relies on our conclusion in Reyes that the evidence of this objective component was lacking. (Reyes, supra, 14 Cal.5th at p. 989.) Reyes involved a situation where the defendant and his fellow gang members, “one of whom was armed, bicycled to an area on the edge of territory belonging to a rival gang.” (Ibid.) We explained, “It may have been likely that this act would result in some sort of gang confrontation, and it is possible that someone would get hurt or killed. But the act does not by itself give rise to a high degree of probability that death will result.” (Ibid.)
The evidence in this matter is far different from the evidence in Reyes. The danger to Abel’s life presented by Norwood’s care was not merely theoretical; it was actual. The jury could readily find that Norwood had already violently shaken Abel, a fragile two-month-old infant, while crushing his ribcage, resulting in the fracture of seven ribs. At trial, a doctor testified that these rib fractures “are very clearly associated with violent shaking of an infant” and “extreme chest compressions most often during an extremely violent shaking process to the infant, such that the ribs snap along the back near the spine.”
In addition, a reasonable jury could find that Norwood did not believe Abel was his son, he had already threatened Abel’s life, he had assaulted Collins while pregnant in order to make her lose Abel, and he had committed numerous additional acts of severe abuse: choking Abel, smacking him, hitting his head on furniture, “bounc[ing]” him too hard, and “thump[ing]” him five or six times in the week or two prior to the fatal abuse. On the day of the fatal abuse, Norwood was high on methamphetamine and had already lashed out violently at Collins. Abel was fussier than usual because of his vaccinations the previous day. A reasonable jury could find that the danger of severe, life-threatening abuse was apparent if Collins allowed Norwood to care for Abel. Indeed, defense counsel conceded in his closing argument at trial that “of course, that would be true,” that the natural and probable consequences of Collins’s failure to act were dangerous to human life.
C. Evidence of Proximate Causation
A defendant’s act or culpable omission must also proximately cause the victim’s death. Again, although the majority finds it unnecessary to consider this element, I would conclude the evidence was sufficient.
Notes
The dissent describes our discussion of the “choking” references as “labored.” (See dis. opn., post, at p. 10.) More generally, it criticizes our recitation of the facts — which largely tracks that of the Attorney General and the Court of Appeal — and offers a “corrective” (ibid.) of over 20 pages. Our command as a reviewing court in evaluating a sufficiency of the evidence claim is to consider the actual evidence before the jury and reasonable inferences favorable to the prosecution that the jury could have drawn from that evidence. The dissent‘s descriptions (such as Collins having “friends and former foster parents to help” based on her former foster mother‘s testimony that she “probably” would have let Collins live with her) and phrasing (such as “callously suggested“) reveal its effort to import its own view of the evidence into the calculus and is therefore inconsistent with this command. Collins told police she thought Norwood was going to Home Depot, but a friend testified at trial that Norwood met with him to try to get more methamphetamine. They were not successful, and Collins called Norwood later when she discovered Abel’s condition.