Opinion
Defendant appeals from a judgment convicting her of second degree murder (Pen. Code, § 187), 1 felony child abuse (§ 273a, subd. (1)), and child beating (§ 273d). The court sentenced her to imprisonment for 15 years to life on the murder count (§ 190) and stayed service of sentence on the 2 remaining counts to avoid double punishment (§ 654). The principal issue on appeal is whether felony child abuse may serve as the underlying felony to support a conviction of second degree murder on a felony-murder theory. We conclude that because the acts constituting such child abuse in the present case were an integral part of the homicide, the offense merged into the homicide; it was therefore error to give a felony-murder instruction, and the judgment must be reversed insofar as it convicts defendant of second degree murder.
Defendant and her two daughters, three-and-a-half-year-old Bethany (Beth) and two-year-old Amy, lived with David Foster. On the day Amy died, 2 she refused to sit on the couch instead of the floor to eat a snack. Defendant became angry, took Amy into the children’s bedroom, spanked her and slapped her in the face. Amy then went towards the corner of the bedroom which was often used for discipline; defendant hit her repeatedly, knocking her to the floor. Foster then apparently joined defendant to “assist” in Amy’s discipline. Beth testified that both Foster and defendant were striking Amy, who at that point had been at least partially undressed by defendant. Defendant and Foster used both their hands and a paddle on the child, and were also biting her. In addition, Beth testified that Foster put a wastebasket on Amy’s head and hit her on the head with his fist. 3 Eventually, defendant knocked the child backwards and she fell, hitting her head on the closet door.
*802 Amy stiffened and went into respiratory arrest. Defendant and Foster took her to the hospital, where defendant admitted that she “beat her too hard.” She also stated that Foster had not come home until after the incident. Amy died that evening. Her injuries were consistent with compressive force caused by numerous blows by hands, fists, and a paddle. The severe head injury that was the direct cause of death occurred within an hour before the child was brought to the hospital.
Defendant testified that although she had spanked Amy on the day in question, she then left Amy in the children’s room. Foster, believing additional discipline was warranted, went into the room, closed the door and began shouting at Amy. Although defendant heard thumping noises, she was not overly concerned because Foster had behaved similarly in the past and Amy had not been injured. After a half hour, defendant became somewhat worried and entered the room. She observed that Amy had a puffy lip, and bite marks and bruises all over her lower body. Foster left the room at defendant’s request after defendant said she would continue the discipline. Defendant then shouted at Amy for 15 to 20 minutes to allow Foster time to “cool off.” To avoid the possibility that Foster might also attack Beth, she took Beth into another bedroom and closed the door. Foster returned to the children’s room and began slapping Amy because she would not look at him. Defendant testified she was afraid that if she interfered she would become the object of Foster’s attack. She stated that although she realized that Amy was being abused, she did not believe the child’s life was in danger. Defendant eventually did intervene, at which point Amy stiffened and fainted. Defendant expressed a desire to take the child to hospital, but Foster objected because of his concern about the possible effect on his probation status. Defendant therefore agreed to take all responsibility for Amy’s injuries and initially did so in her statement at the hospital. As noted above, however, defendant later denied any active involvement in the beating that led to Amy’s death.
I
The court gave the jury the standard instructions defining murder, malice aforethought, second degree murder, second degree felony murder, and manslaughter. The second degree felony-murder instruction (CALJIC No. 8.32 (4th ed. 1979)) informed the jury that an unlawful killing, whether intentional, unintentional, or accidental, is second degree murder if it occurs during the commission of a felony inherently dangerous to human life, and that felony child abuse (§ 273a, subd. (1)) is such a crime, Defendant contends that on the facts of this case the crime of felony child abuse was an integral part of and included in fact within the homicide, and hence that it merged into the latter under the rule of
People
v.
Ireland
(1969) 70
*803
Cal.2d 522, 538-540 [
Our opinions have repeatedly emphasized that felony murder, although the law of this state, is a disfavored doctrine: “We have recognized that the rule is much censured ‘because it anachronistically resurrects from a bygone age a “barbaric” concept that has been discarded in the place of its origin’
([People
v.
Phillips
(1966)
In accord with this policy, we restricted the scope of the felony-murder rule in
Ireland
by holding it inapplicable to felonies that are an integral part of and included in fact within the homicide. In that case the defendant and his wife were experiencing serious marital difficulties which eventually culminated in defendant’s drawing a gun and killing his wife. The jury was instructed that it could find the defendant guilty of second degree felony murder if it determined that the homicide occurred during the commission of the underlying felony of assault with a deadly weapon. Like all felony-murder instructions, this instruction had the “effect of ‘reliev[ing] the jury of the necessity of finding one of the elements of the crime of murder’ [citation] to wit, malice aforethought.”
(People
v.
Ireland, supra,
Very soon after
Ireland
we again had occasion to consider the question of merger in
People
v.
Wilson
(1969)
The defendant was also convicted of the first degree murder of his wife, and we reversed that conviction on similar grounds. The jury was instructed on first degree felony murder on the theory that the homicide was committed in the course of a burglary because the defendant had entered the premises with intent to commit a felony, i.e., assault with a deadly weapon. We held that the felony-murder rule cannot apply to burglary-murder cases in which “the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged . . . .” (Id., at p. 440.) Because under Ireland the “elements of the assault were necessary elements of the homicide” (id., at p. 441), the felony of burglary based on an intent to commit assault was included in fact in the homicide. We reasoned that “Where a person enters a building with an intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule. That doctrine can serve its purpose only when applied to a felony independent of the homicide.” (Id., at p. 440.) We concluded that an instruction telling the jury that “the intent to assault makes the entry burglary and that the burglary raises the homicide resulting from the assault to first degree murder without proof of malice aforethought and premeditation” used the same bootstrap reasoning we condemned in Ireland. (Id., at p. 441.)
In
People
v.
Sears
(1970)
In addition to the offenses of assault with a deadly weapon and burglary with intent to assault, the felony of discharging a firearm at an inhabited dwelling (§ 246) has also been held to merge into a resulting homicide; thus, application of the felony-murder rule in this situation is similarly prohibited.
(People
v.
Wesley
(1970)
Cases in which the second degree felony-murder doctrine has withstood an
Ireland
attack include those in which the underlying felony was furnishing narcotics (Health & Saf. Code, § 11501;
People
v.
Taylor
(1970)
In
People
v.
Burton, supra,
we refined the
Ireland
rule by adding the caveat that the felony-murder doctrine may nevertheless apply if the underlying offense was committed with an “independent felonious purpose.” (
Our task is to apply the foregoing rules to the offense at issue here— felony child abuse defined by section 273a, subdivision (l). 4 We recognize that a violation of its terms can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect. Two threshold considerations, however, govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed “under circumstances or conditions likely to produce great bodily harm or death.” (§ 273a, subd. (1).) Absent either of these elements, there can be no violation of the statute.
The language of
Ireland, Wilson
and
Burton
bars the application of the felony-murder rule “where the purpose of the conduct was the very assault which resulted in death.”
(People
v.
Burton, supra,
In the present case the homicide was the result of child abuse of the assaultive variety. Thus, the underlying felony was unquestionably an “integral part of” and “included in fact” in the homicide within the meaning of
Ireland.
5
Furthermore, we can conceive of no independent purpose for
*807
the conduct, and the People suggest none; just as in
Ireland,
the purpose here was the very assault that resulted in death. To apply the felony-murder rule in this situation would extend it “beyond any rational function that it is designed to serve.”
(People
v.
Washington, supra,
In
Ireland,
we reasoned that one who violates section 245 is not deterred by the felony-murder rule. The elements of section 245 and the offense here are strikingly similar;
6
the principal difference is that the assault prohibited by section 273a is committed on a child. Accordingly, despite our deep abhorrence of the crime of child abuse, we see no escape from our duty to apply the merger doctrine we carefully enunciated in
Ireland
and its progeny. A sister jurisdiction has come to a similar conclusion, holding that “the felony committed, child beating, is not independent of the homicide and must merge into the homicide.”
(Massie
v.
State
(Okla. Crim. 1976)
A recent Court of Appeal decision discusses this subject.
(People
v.
Northrop, supra,
The Northrop court relied on People v. Mattison, supra, 4 Cal.3d 177, in which we held that the felony of poisoning did not merge into the resulting homicide. We reasoned that because the underlying felony was “not done with the intent to commit injury which would cause death,” it had an *808 independent design. (Id., at p. 185.) The independent design in Mattison was to furnish a dangerous substance for financial gain. As we have seen, however, by its very definition felony child abuse occurs only “under circumstances or conditions likely to produce great bodily harm or death.” It is untenable to assert that there is an independent design when the crime of felony child abuse of the assaultive variety is willfully committed under such circumstances. To the extent Northrop is inconsistent with our reasoning herein, it is therefore disapproved.
The People argue that the present case is controlled by
People
v.
Shockley, supra,
It was therefore error to give a felony-murder instruction in this case. The People cannot show that no juror relied on the erroneous instruction as the sole basis for finding defendant guilty of murder. In these circumstances it is settled that the error must be deemed prejudicial.
(People
v.
Green
(1980)
II
For the guidance of the court in the event of a retrial on the murder charge, however, we address defendant’s contention that she is entitled to 26 rather than 10 peremptory challenges under Penal Code section 1070. The statute grants 26 challenges to a defendant charged with an offense punishable by death or “imprisonment ... for life.” In
People
v.
Yates
(1983)
The same analysis governs the case at bar. If defendant is convicted on retrial of second degree murder, she will be subject to an indeterminate term of 15 years to life. (§ 190.) She will not be eligible for parole until she has served two-thirds of that sentence, or 10 years. Because that sentence is thus more severe than a determinate life term, defendant will be entitled to 26 peremptory challenges under Yates.
III
Defendant contends that the felony child abuse and child beating statutes under which she was convicted are void because unconstitutionally vague. More specifically, she asserts that the two phrases—“unjustifiable physical pain or mental suffering” in section 273a, subdivision (1), and “cruel or inhuman corporal punishment or injury resulting in a traumatic condition” in section 273d 8 —do not provide a readily ascertainable standard of guilt, and therefore violate due process of law.
“The fundamental policy behind the constitutional prohibition of vaguely worded criminal statutes was stated in
Lanzetta
v.
New Jersey
(1939)
*810
“The presumptive validity of a legislative act militates against invalidating a statute merely ‘. . . because difficulty is found in determining whether certain marginal offenses fall within . . . [its] language. ’ ”
(Bow-land
v.
Municipal Court
(1976)
The statutes in issue have withstood similar constitutional challenges in the Courts of Appeal. A number of decisions have held that section 273a, subdivision (1), is not void for vagueness
(People
v.
Ewing
(1977)
The judgment is reversed insofar as it convicts defendant of second degree murder; in all other respects the judgment is affirmed.
Bird, C. J., Kaus, J., Broussard, J., Reynoso, J., Grodin, J., and Richardson, J., * concurred.
Notes
All statutory references hereinafter are to the Penal Code unless otherwise indicated.
Although evidence as to incidents over the course of a few months prior to Amy’s death was admitted, the major focus at trial was on the events of the day of her death. Because of the nature of the legal discussion which follows, factual background beyond the scope of that particular day is unnecessary.
Apparently Beth was in another room during the incident but claimed she could see “a little bit” despite her testimony that both the door to the room she was in and the door to Amy’s room were closed.
Section 273a, subdivision (1), provided: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willñilly causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding 1 year, or in the state prison for not less than 1 year nor more than 10.”
This conclusion is further supported by the finding of the trial court that to punish defendant for felony child abuse (and child beating) in addition to murder would constitute double punishment for the same act in violation of section 654.
Section 245, subdivision (a)(1), prohibits assault with a deadly weapon or “by any means of force likely to produce great bodily injury.”
Because of this factual distinction we need not address the question whether the merger doctrine applies when the defendant is guilty of felony child abuse of the nonassaultive variety, e.g., by extreme neglect—as in Shockley—or by failure to intervene when a child in his care or custody is placed in a life-endangering situation.
Section 273d provides: “Any person who willfully inflicts upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for 2, 3 or 4 years, or in the county jail for not more than one year.”
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.