Opinion
In the published portion of this opinion, we hold that a parent has a duty to protect his or her young child and may be criminally culpable on an aider and abettor theory for an assault causing death and on an implied malice theory for murder where the parent fails to take reasonably necessary steps for the child’s protection, so long as the parent, with ability to do so, fails to take those steps with the intent of facilitating the perpetrator’s assaultive offense. We hold that the evidence in this case was sufficient to support guilt for the child’s death on either theory. In the unpublished portion of this opinion, we hold that thе trial court properly refused to instruct the jury on the defense of duress. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Anthony Bill Lopez was the father of six of appellant’s seven children, including her one-year-old son Isaac. Although a court order prohibited appellant from allowing Lopez to visit or stay at her apartment, he had stayed there for about a week before the homicide in this case. The court order also *1210 forbade any unmonitored contact between Lopez and appellant’s children, and appellant was not permitted to act as the monitor.
On April 19, 2003, a social worker made an unannounced visit to the apartment. Lopez hid in a bedroom closet, and appellant told the social worker that he was not in the home. The social worker did not notice any injuries on Isaac during the visit.
On April 20, 2003, about 6:00 or 7:00 p.m., Lopez immersed Isaac in a tub of water and unspecified chemicals. Lopez then threw him against a wall, in appellant’s presence. Isaac had been crying, but stopped after he hit the wall. Lopez went to sleep about midnight that night, while appellant stayed up to watch Isaac.
Appellant described the events that followed during three interviews with police investigators. (At trial, tapes and written transcripts of the interviews were prеsented to the jury without objection.) About 2:00 a.m. on April 21, Lopez woke to the sound of Isaac crying. Lopez said Isaac might be hungry and asked appellant’s son Christian to heat some food for him. Isaac continued to cry after being fed. Lopez punched Isaac in the chest. Appellant told Lopez to leave Isaac alone, and Lopez told her to shut up and not get involved.
Appellant’s neighbor Kristal Cardenas shared a wall with appellant. In the early morning hours of April 21, she heard a screaming child in appellant’s apartment and a series of thumps against the wall that lasted for three minutes. The thumps and the screams ceased simultaneously.
About 6:00 a.m. that morning, Lopez said he would take care of Isaac and told appellant to go to bed, which she did. Isaac was strapped into a car seat at that point. An hour later, Lopez woke appellant and told her Isaac was not breathing. She got up and saw Lopez administering cardiopulmonary resuscitation to Isaac, who was lying on a towel. Lopez told her he had wrapped a stuffed toy and a jacket around Isaac because he would not stop crying. He told her not to use the phone and asked her to help him revive Isaac, because otherwise, “[tjhеy’re going to take all the kids away.” Appellant and Lopez immersed Isaac in a bathtub filled with water. When that failed to wake Isaac, Lopez attempted cardiopulmonary resuscitation again. Isaac did not respond. Lopez then poured rubbing alcohol on Isaac’s body. He then wrapped Isaac in a blanket and put him in a crib.
That day, appellant and Lopez kept the other children in the apartment, telling them that Isaac was at the hospital. About 11:00 p.m. that night, Lopez left the apartment with Christian to purchase gasoline. When Lopez returned, *1211 he instructed appellant and the children to go to bed. Aрpellant rose around 2:00 a.m. the following morning and saw Lopez in the kitchen. Lopez said he was going to erase Isaac’s identifying features, and he took Isaac into the bathroom with the gasoline, a chair and a bucket. Appellant stood outside the bathroom while Lopez burned Isaac’s body in the bucket. Lopez brought the body out of the bathroom and began wrapping it in plastic, instructing appellant not to look. At around 7:00 a.m., he left the house with the plastic-wrapped body, the bucket and the chair. Police officers subsequently arrested Lopez and discovered Isaac’s body in his van.
An autopsy revealed that Isaac suffered 24 blunt force injuries before he died, four of which were inflicted near the time of death and the remainder of which were inflicted no more than one day before death. The tissue connecting his upper lip to his gum was tom, and one of his teeth was chipped. The pathologist who conducted the autopsy concluded that all of the injuries, with the possible exception of one bmise on Isaac’s back, were nonaccidental.
Isaac’s lungs were blotchy and blood had pooled in them, indicating that he suffocated. His blood and stomach contained ethanol (drinking alcohol), isopropanol (mbbing alcohоl), brompheniramine (an antihistamine), and pseudoephedrine (a decongestant). The pseudoephedrine was present in levels indicating that Isaac had been fed between 80 to 90 milligrams of children’s medicine, which was between five to 25 times the normal dosage for a child. In the opinion of the pathologist who conducted the autopsy, Isaac had a lethal amount of pseudoephedrine in his system when he died. The pathologist concluded that Isaac’s death was probably caused by a combination of suffocation, the pseudoephedrine overdose and his injuries.
On March 1, 2005, an information was filed charging appellant with one count of assault on a child under eight years of age resulting in death (Pen. Code, § 273ab), 1 one count of second degree murder (§ 187) and one count of willfully causing a child to suffer under circumstances likely to result in death (§ 273a, subd. (a)) with an enhancement because death actually resulted (§ 12022.95). On June 26, 2006, a separate jury convicted Lopez of one count of assault on a child under eight years of age resulting in death (§ 273ab), one count of first degree murder during the commission of torture (§§ 187, 189, 190.2, subd. (a)(18)), and one count of willfully causing a child to suffer under circumstances likely to result in death (§ 273a, subd. (a)) with an enhancement for actually resulting in death. (§ 12022.95.)
At trial, the People’s theory was that Lopez killed Isaac and that appellant aided and abetted Lopez by failing to perform her parental duty to protect *1212 Isaac. Over appellant’s objection, the court instructed the jury that appellant had a duty to take all steps reasonably necessary under the circumstances to protect Isaac from harm. Also over objection, the court gave modified versions of CALJIC Nos. 3.01, 8.11 and 8.31, to the effect that appellant’s failure to perform her duty would be the equivalent of an affirmative act for the purposes of finding aiding and abetting, implied malice and second degree murder. Appellant requested that the court instruct the jury according to CALJIC No. 4.40 (the defense of duress), but the court refused. On January 31, 2007, the jury convicted appellant on all counts. This is a timely appeal from the judgment.
DISCUSSION
I
Appellant argues that the trial court incorrectly instructed the jury that a parent may be liable for aiding and abetting a crime and for second degree murder on an implied malice theory by intentionally failing to act to protect his or her child from harm. We review de novo whether jury instructions given correctly state the law on this issue. (See
People v. Posey
(2004)
A person who aids and abets the commission of a crime is a principal tо that crime. (§31.) “[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.]”
(People v. Perez
(2005)
In
People v. Swanson-Birabent
(2003)
Based on Swanson, the trial court gave the following special instruction to the jury:
“The word ‘act’ as used in these instructions includes an omission or failure to act in those situations where a person is under a legal duty to act.
“A parent has a legal duty to his or her minor child to take every step reasonably necessary under thе 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.”
The trial court also gave the following instruction based on CALJIC No. 3.01 (we have italicized the trial court’s additions):
“A person aids and abets the commission of a crime when he or she:
“(1) With knowledge of the unlawful purpose of the perpetrator, and
“(2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and
“(3) By act or advice or by omitting or failing to act in those situations where a person is under a legal duty to act, aids, promotes, encourages, or instigates the commission of the crime.
“Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.
“Mere knowledge that a crime is being committed, and, in the absence of a legal duty, the failure to prevent it does not amount to aiding and abetting.”
The trial court gave the following instruction based on CALJIC No. 8.11, which states in relevant part (additions italicized):
*1214 “Malice is implied when:
“1. The killing resulted from an intentional act or an intentional omission or intentional failure to act in those situations where a person is under a legal duty to act,
“2. The natural consequences of the act or omission or failure to act are dangerous to human life; and
“3. The act or omission or failure to act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
“When it is shown that a killing resulted from the intentionаl doing of an act or the intentional omission or intentional failure to act with implied malice, no other mental state need be shown to establish the mental state of implied malice aforethought.”
The trial court also gave the following instruction based on CALJIC No. 8.31 (additions italicized):
“Murder in the second degree is the unlawful killing of a human being when:
“1. The killing resulted from an intentional act or an intentional omission or intentional failure to act in those situations where a person is under a legal duty to act,
“2. The natural consequences of the act or omission or failure to act are dangerous to human life, and
“3. The act or omission or failure to act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.
“When the killing is the direct result of such an act or omission or failure to act, it is not necessary to prove that the defendant intended that the act or omission or failure to act would result in the death of a human being.”
Appellant argues these instructions are erroneous to thе extent they provide for aider and abettor liability based on failure to act because the discussion in
Swanson
is dictum on that issue. But the
Swanson
court held not only that the evidence supported the inference that appellant affirmatively acted to aid her daughter’s molestation, but also, as an alternative basis for its conclusion, that her failure to act was a sufficient actus reus for this crime.
(Swanson, supra,
Appellant also argues that
Swanson
was wrongly decided. She contends, first, that section 272, subdivision (a)(2) is not authority for the conclusion reached because it states only a limited parental duty. We agree with her premise. Subdivision (a)(2) provides: “For purрoses of this subdivision, a parent or legal guardian to any person under the age of 18 years shall have the duty to exercise reasonable care, supervision, protection, and control over their minor child.” “[I]f the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the [statutory] language governs. [Citations.]”
(People v. Walker
(2002)
But section 272 is not the exclusive source of the parental duty to protect, because parents are under a common law duty to protect their children. “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, supra, 9 Cal.4th at p. 198.) A criminal stаtute may incorporate a duty imposed by another criminal or civil statute, and “may also 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. [Citations.]” {Ibid.) “The common law imposes affirmative duties upon persons standing in certain personal relationships to other persons—upon parents to aid their small children ... a mother [may be guilty of criminal homicide] for failure to prevent the fatal beating of her baby by her lover ...” (1 LaFave, Substantive Criminal Law (2d ed. 2003) § 6.2(a)(1), p. 437.) “Even accomplice liability may be grounded in an omission to act.” (Id. at p. 436.)
Appellant argues that while, under
Heitzman,
the common law may inform the scope and nature of a statutorily established duty to act, it does not
*1216
permit criminal liability to flow from the common law where no statute imposes liability. Appellant misreads
Heitzman.
That case does not say that the common law may only inform an existing statutory duty; it says that a criminal statute may embody a common law duty.
(Heitzman, supra,
Appellant argues that common law does not impose criminal liability on parents who fail to act to protect their children.
Swanson
does not explicitly discuss common law parental liability, though it quotes extensively from
State v. Walden, supra,
Our research has disclosed no California case other than
Swanson
that addresses whether a parent can aid and abet a crime victimizing his or her child by failing to intervene.
3
Most other jurisdictions that have considered the issue have decided it in the affirmative. In
State
v.
Walden, supra,
In
Stanciel, supra,
A minority of jurisdictions has decided that parental inaction does not provide a basis for criminal liability. In
Commonwealth v. Raposo
(1992)
In
State v. Jackson
(1999)
We are satisfied that the better rule is that parents have a common law duty to protect their children and may be held criminally liable for failing to do so: a parent who knowingly fails to take reasonable steps to stop an attack on his or her child may be criminally liable for the attack if the purpose of nonintervention is to aid and abet the attack. (See Heitzman, supra, 9 Cal.4th at p. 198.) For these reasons, we agree with the Swanson court in its conclusion that 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. For the same reasons we conclude that such intentional conduct in support of an aider and abettor can support liability for implied malice murder. (Heitzman, at p. 198; People v. Burden, supra, 72 Cal.App.3d at pp. 618-621 [affirming father’s second degree murder conviction for willfully failing to perform his duty to feed his infant son, who starved to death].)
We emphasize, however, that liability 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 probable outcome. In this case, the modified instructions correctly required the jury to find appellant’s intent and conduct separately. Under these instructions, the jury could reasonably infer appellant’s intent to aid Lopez from her presence at the scene of the crime, her duty to protect her child and her failure to do so.
10
As we have seen, other jurisdictions agree. (See
State v. Walden, supra,
Like the North Carolina decision upon which it is based,
Swanson
moderates its statement of parental duty with the qualification that parents do
*1220
not have the duty to risk death or great bodily harm to protect their children, and the relative size and strength of the parties involved is relevant to a determination of what is reasonable.
(Swanson, supra,
Appellant argues, in effect, that the statement in the instruction that a parent must take “every step reasonably necessary under the circumstances” implies that a parent must do whatever is necessary to protect his or her child, regardless of the danger to the parent in doing so. That is not a reasonable reading of the language in the instruction, and a reasonable juror would not understand it in that way, absent being urged to do so by the court or by counsel in argument. The instruction informs the jury that the parent’s duty is to take all steps
reasonably necessary under the circumstances,
not to take every possible step regardless of risk of harm to the parent. In this case, defense counsel did not mention the instruction—or the parental duty—in his closing argument, and the prosecutor argued the issue in the terms appellant claims the jury should have heard.
11
Although this part of the instruction could have been drafted with greater clarity, it is not probable a reasonable jury would have understood it in the manner appellant suggests.
(People v. Mayfield
(1997)
*1221
Appellant contends the instruction does not accurately reflect her parental duty under
Swanson
because it phrases the parental duty in terms of taking “every step reasonably
necessary
under the circumstances in a given situation ... to protect the child from harm,” while
Swanson
phrases it in terms of taking “ ‘all steps reasonably
possible
to protect the parent’s child.’ ”
(Swanson, supra,
The trial court was of course bound to follow Swanson, the sole controlling authority on this precise issue at the time. But the court was not bound to quote that opinion verbatim in its jury instructions; instead, the court had a duty to accurately restate the principles articulated in Swanson in a clear and impartial manner. (Cal. Rules of Court, rule 2.1050(e).) To the extent the language in the instruction differed from the precise languagе used in Swanson, the instruction given by the court resolved the distinction in appellant’s favor. A duty to take every reasonably possible step to protect the child is more onerous than a duty to take all reasonably necessary steps to that end.
Appellant argues that her actions were reasonable under the circumstances because she did take every step reasonably necessary under the circumstances. We reverse a conviction for lack of substantial evidence if a review of the record in the light most favorable to the judgment discloses no evidence upon which a reasonable trier of faсt could find guilt beyond a reasonable doubt.
(People v. Upsher
(2007)
In this case, appellant attempted to strike Lopez at least once during the week before the homicide. According to her statement to the interrogating officers, she reprimanded Lopez when he punched her son, and after he told her to “shut up” and not involve herself, she continued “fighting” with him. She did not explain what she meant by “fighting.” She made no effort to aid her son: she did not scream, call 911, ask a neighbor to help or call for help, or do anything else. Instead, she went to sleep and left her son alone with Lopez although she knew Lopez had recently punched him and thrown him against а wall. From this evidence, a reasonable jury could infer that appellant was capable of taking some action to protect her child and that she chose not to do so, but to go to sleep and leave her son alone with Lopez. These inferences support the conclusion that appellant did not take every step reasonably necessary under the circumstances to protect her son.
II *
*1222 DISPOSITION
The judgment is affirmed.
Willhite, J., and Suzukawa, J., concurred.
Appellant’s petition for review by the Supreme Court was denied June 18, 2008, S162831. George, C. J., Werdegar, J., and Corrigan, J., did not participate therein.
Notes
All further statutory references are to the Penal Code unless otherwise noted.
Welfare and Institutions Code sections 300, 601 and 602 specify conditions upon which the juvenile court acquires jurisdiction over a child as a dependent or a delinquent. Subdivision (b) of section 602 of that code also states that persons alleged to have committed murder with a special circumstance listed in section 190.2, or certain sexual offenses, shall be prosecuted under the general law in a court of criminal jurisdiction.
People
v.
Culuko
(2000)
The statute provided misdemeanor liability for knowingly or willfully contributing to the delinquency or neglect of a minor. (N.C. Gen. Stat. former § 14-316.1.)
The Illinois accountability statute stated in relevant part: “ ‘A person is legally accountable for the conduct of another when: [][]... [|] ... [e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.’ ”
(Stanciel, supra,
People ex rel. O’Connell v. Turner
states the duty in terms of “natural law.”
(The People ex rel. O’Connell v. Turner, supra,
The statutes provided, in relevant part, misdemeanor liability for “ ‘person[s] legally chargеd with the support of a child under 18 years of age . . . [who] fail[] without lawful excuse to provide [food, care, clothing, shelter, medical attention and education] for the child.’ ”
(Michael v. State, supra,
The accessory statute read: “ ‘Whoever aids in the commission of a felony, or is accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon.’ ”
(Commonwealth v. Raposo, supra,
The instruction stated in relevant part: “The word ‘aid’ means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime.
Unless there is a legal duty to act,
more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice;
a legal duty exists for a parent to come to the aid of their small children if physically capable of doing so.” (State
v.
Jackson, supra,
The prosecution urged the jury to so infer: “When a parent is present and fails to take all steps that are reasonably рossible or necessary to protect their child from attack from another person, like what happened in this case, that is an omission. And that omission, which is an act for these purposes, shows that parent’s, Ms. Rolon’s, consent and participation in the crimes she is being prosecuted for.”
The prosecutor argued as follows: “What that means to take steps reasonably necessary, it will depend on different circumstances, require different steps. You take a look at who is involved, what the situation is. A parent is not required to lay down their life for their child. In some circumstances, maybe they can subdue an attacker or mаybe it is not reasonable to do that. In some circumstances, it may be reasonable for them to just yell for help. It may be reasonable to take the child out of the situation. It may be reasonable to call 911. Depends on the particular circumstances where that crime is occurring or what the situation is, what is reasonable. It is not reasonable to require a person to suffer great bodily harm or to lay down their life, but they are required to take every reasonable step necessary to protect their child or provide medical attention as necessary.”
Swanson, supra,
See footnote, ante, page 1206.