Filed 1/30/01

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County, Richard H. Gilmour, Judge. Reversed in part and affirmed in part.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant Eva Valdez.

Steven Shorr, under appointment by the Court of Appeal, for Defendant and Appellant Hiram David Lebron.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Carlos A. Martinez, Supervising Deputy Attorney General, Robert M. Morgester, Deputy Attorney General, for Plaintiff and Respondent.

The convictions in this case arose from the death of 11-month-old Thalia Escoto (Thalia), the daughter of defendant Hiram Lebron’s (Lebron) live-in fiancée, defendant Eva Valdez (Valdez).

Defendant Valdez was convicted of felony child endangerment, and an enhancement of child endangerment resulting in death was found to be true. We will reverse the conviction. In the published portion of this opinion, we find that Valdez was prejudiced when the court instructed and the prosecutor argued to the jury that the necessary mental state for felony willful endangerment was met by proof of criminal negligence. The crime’s mental state is found in the endangerment statute’s use of the term "willfully." From it we conclude that an accused must "purposefully" or "intentionally" cause or permit the child to be placed in a situation where there is a serious physical danger or a serious health hazard to the child. Given this required purpose or intent, the accused must subjectively know or be aware of the danger or hazard.

Defendant Lebron was convicted of one count of involuntary manslaughter and one count of assault on a child under eight years old resulting in death. In the unpublished portion of this opinion, we reject Lebron’s contentions and affirm the judgment against him.

On May 17, 1997, Lebron, who was watching 11-month-old Thalia while Valdez was at work, brought Thalia, unconscious, into the pediatric emergency room at U.C. Davis Medical Center. Appearing panicked and concerned, Lebron pointed to the right side of Thalia’s head and told a nurse that she had fallen. Medical intervention failed to save Thalia’s life.

An autopsy disclosed that Thalia had suffered a depressed-type skull fracture, which is typically caused by a blow. Thalia also had a linear skull fracture; various forces, such as blows or falls, can cause linear fractures. According to Dr. Donald Henrikson, the pathologist who performed the autopsy, a "significant amount of force" would be necessary to produce such injuries, such as the force from a car accident, or from a fall of more than 10 feet, or from a deliberate assault.

Henrikson observed injuries to Thalia’s brain and hemorrhages to her eyes, symptoms typical of the violent shaking associated with shaken infant syndrome. He also observed numerous contusions scattered about Thalia’s body.

Evidence was presented of Lebron’s involvement, or possible involvement, in various injuries suffered by Thalia, including a scalding burn, a broken arm, a black eye, and bumps and bruises to Thalia’s head and body. These injuries took place over a three-month span, which roughly coincided with the period during which Lebron and Valdez lived together. Innocent explanations were offered for most of these injuries.

The case against Valdez was based on this "coincidental" series of injuries to Thalia. Four friends and acquaintances of Valdez suggested that she leave Lebron or at least find someone else to watch her children. There was also evidence that Valdez acknowledged she needed to find someone other than Lebron to take care of the children.

Valdez contends that the CALJIC No. 9.37 instruction improperly permitted her conviction for felony willful endangerment under section 273a(a) to be based on the mental state of criminal negligence rather than willful endangerment. In considering this contention, we must ascertain the required mental state for this offense. After ascertaining that mental state, we agree with Valdez and reverse her conviction.

The court in Sargent also stated with respect to section 273a(a)’s substantively identical predecessor, section 273a(1):

"We have observed that violation of section 273a(1) ‘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.’ (People v. Smith (1984) 35 Cal.3d 798, 806 [201 Cal.Rptr. 311, 678 P.2d 886].) We have also observed, however, that ‘[t]wo threshold considerations . . . 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) [now § 273a(a)].) Absent either of these elements, there can be no violation of the statute.’ (Ibid.) Section 273a(1) is ‘intended to protect a child from an abusive situation in which the probability of serious injury is great.’  (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [159 Cal.Rptr. 771].) ‘[T]here is no requirement that the actual result be great bodily injury.’ (Ibid.)"

B. Incorporation of the Criminal Negligence Standard into the Mental State Element of the Felony Willful Endangerment Branch of Section 273a(a)

The defendants in Beaugez contended that this branch of section 273a was unconstitutionally vague. The Beaugez court disagreed. Said the court: "By giving the word ‘wilful’ its accepted statutory meaning and by applying the ‘rule of reason’ to the provision as a whole, we think sufficient clarity emerges to ‘provide a standard of conduct’ to guide the guardian of the child against commission of the offense and to guide the trier of fact in determining guilt."

Using section 7, which generally defines use of the word "willfully" in the Penal Code, the Beaugez court construed "‘willfully’ as used in . . . section 273a to mean ‘purposeful’ or ‘with knowledge of consequences.’" Section 7 provides in relevant part: "The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: [¶]  1. The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." Beaugez then continued: "And by applying the ‘rule of reason’ [footnote omitted] to the whole provision [of the section 273a willful endangerment branch] we construe its meaning as a whole to condemn the intentional placing of a child, or permitting him to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable. . . . [S]o construed[,] we find [that branch] not void for vagueness."

Ten years after Beaugez came the seminal decision in this area, Peabody, in which the Fifth Appellate District explicitly held "that the standard of conduct condemned by the [felony willful endangerment branch of section 273a(1), now section 273a(a)] is that of criminal negligence . . . ." Peabody noted that the felony willful endangerment branch of section 273a(a) "proscribes a person from wil[l]fully causing or permitting a child to be placed in a health endangering situation under circumstances likely to produce great bodily harm or death." Peabody also noted that section 7 defines the word "willfully" "as simply a purpose or willingness to commit the act and does not require any intent to injure another." However, said Peabody, section 20 states that in every crime there must exist a union or joint operation of act and intent, or act and criminal negligence. Apparently focused on the fact that "willfully" does not require any intent to injure another, and concerned that the act of "permitting" dangerous placement is otherwise unqualified, the Peabody court concluded that willful endangerment requires a mental state of criminal negligence (i.e., gross negligence). Later in its opinion, the court in Peabody characterized Beaugez as "hold[ing] that section 273a, subdivision (1) [now § 273a(a)] does not require a criminal intent, but only a negligent placing of a child in a dangerous situation."

With Peabody, the stage was set and criminal negligence has in effect defined the mental state element of felony willful endangerment ever since. This expression reached its apogee in People v. Rippberger. There, the First Appellate District stated, "Although Penal Code section 273a, subdivision (1) [now § 273a(a)], does use the word ‘willfully,’ the crime described is one of criminal negligence and not of malice or specific intent." The state Supreme Court itself, in Walker v. Superior Court, did not dispute the defendant’s broad statement there that section 273a(1) (now 273a(a)) requires criminal negligence in the commission of an offending act; Walker cited Peabody.

That brings us to our Supreme Court’s 1999 decision in Sargent. There the court concluded that criminal negligence is not an element of the section 273a offense involving the branch of direct infliction of unjustifiable physical pain or mental suffering. "Rather, the defendant must have a mens rea of . . . criminal intent to commit the proscribed act. In addition, the trier of fact must determine whether the infliction of the unjustifiable physical pain or mental suffering on a child was under circumstances or conditions likely to produce great bodily harm or death. If so, the crime is punishable as a felony. If not, it is punishable solely as a misdemeanor."

Thus, the conduct element (the actus reus) for the child abuse branch at issue in Sargent is the infliction of unjustifiable physical pain or mental suffering on a child. The mental state element (the mens rea) is "willful" infliction of such pain or suffering (i.e., criminal intent). And for such infliction to be a felony, it must involve the context element of "under circumstances or conditions likely to produce great bodily harm or death." In this way, the felony infliction branch of section 273a(a) is akin to assault by means of force likely to produce great bodily injury; assault is an intent crime and the means of force likely to produce great bodily injury is the context element the trier of fact must also find.

In its analysis, the Sargent court noted its statement in People v. Smith, that all types of conduct prohibited by section 273a "‘must be willful,’" and noted its failure to dispute the defendant’s broad characterization in Walker v. Superior Court, that section 273a requires criminal negligence. The Sargent court also listed those cases which impose a criminal negligence requirement for section 273a, or which state that section 273a is a criminal negligence statute, noting that each of them involved indirect abuse rather than direct infliction.

Sargent added, "Because in this case we address only the mens rea required for direct infliction of unjustifiable physical pain or mental suffering, the issue of what mens rea is required for the other three branches, discussed in Justice Mosk’s concurring opinion, is not before us."

In his concurring opinion, Justice Mosk, joined by Justice Kennard, dispensed with "Peabody and its progeny," concluding that felony child abuse "does not include a mental element of ‘criminal negligence’ . . . ." Focusing on the section 273a adverb "willfully" and the section 7 definition of "willfully" (i.e., "a purpose or willingness to commit the act, or make the omission referred to"), Justice Mosk concluded that the required mental state for all four branches of child abuse under section 273a is "an intent to commit one of the proscribed acts or omissions, and a purpose to bring about, or allow, one of the proscribed results."

C. Required Mental State for Felony Willful Endangerment

We begin with the language of the statute. To be convicted of section 273a(a) felony willful endangerment, a caretaker or custodian of a child must "willfully cause[] or permit[] [the] child to be placed in a situation where his or her person or health is endangered." (Italics added.) As defined in section 7, the word "willfully" means "a purpose or willingness to commit the act, or make the omission referred to."

Thus, to be convicted of section 273a(a) felony willful endangerment, a caretaker or custodian of a child must "purposefully" place, or purposefully permit the child to be placed, in a situation where its person or health is endangered (i.e., the caretaker or custodian must act or fail to act for the purpose of placing the child in a situation where there is a serious physical danger or a serious health hazard to the child; given the required purposefulness of the act or omission, the caretaker or custodian must subjectively know or be aware of this danger or hazard). In short, to paraphrase Beaugez, the felony willful endangerment branch of section 273a(a) proscribes intentionally placing a child, or intentionally permitting the child to be placed, in a situation where there is a serious physical danger or a serious health hazard to the child.

In this way, the mental state element for section 273a(a) felony willful endangerment is purposefully or intentionally causing or permitting a child to be placed in a situation where the child’s person or health is seriously endangered; given this required purpose or intent, the accused must subjectively know or be aware of the danger. There is no "criminal negligence" mental state element in section 273a.

This interpretation is true to the section 273a(a) statutory language, which expressly requires that the caretaker or custodian "willfully cause[] or permit[] [the] child to be placed in a situation where his or her person or health is endangered."

This interpretation is true to the statutory purpose of section 273a(a). Section 273a(a) "is ‘intended to protect a child from an abusive situation in which the probability of serious injury is great.’" It seeks to protect "children against risks they cannot anticipate."

This interpretation is true to the manner in which courts apply the section 7 term "willfully" in a criminal statute that contains that term. For example, in In re Stonewall F, this court defined the mental state for arson, which also uses the section 7 term "willfully." In its analysis, the Stonewall F. court pointed to Peabody and the use of the section 7 term "willfully" in the offense of felony willful endangerment. Incorporating section 7’s definition of "willfully" into the endangerment offense, said Stonewall F., means "an intent to place the child in a situation in which its person or health [is] in fact endangered." Stonewall F. continued: "The section 7 definition [of "willfully"] is entirely dependent upon the act to which ‘wilfull’ is appended. The required intent is an intent to do just that to which the term wilfull is applied. Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed."

This interpretation is also true to the state Supreme Court’s requirement in People v. Smith that "all types of conduct" prohibited by section 273a(a) "must be willful," and that absent this "element," there can be no violation of the statute.

And this interpretation is true to the established principle that "willful" means the prohibited conduct must be performed purposefully or intentionally, that is, with a more culpable state of mind than that required for "criminal negligence."

As noted, the standard of criminal negligence was incorporated into the felony willful endangerment branch of section 273a in the seminal Court of Appeal decision of Peabody. Peabody recognized that section 273a applies where the defendant "willfully causes or permits" the proscribed harm. Concerned, however, about the open-ended nature of "permitting" abuse, Peabody sought to meaningfully distinguish between those acts and omissions that are sufficiently culpable to warrant criminal liability and those that are not.

In this way, Peabody’s concern about the open-ended nature of "permitting" abuse evaporates, as does its concern that no culpable mental state is specified for the felony willful endangerment branch. As we have defined the mental state element of the felony willful endangerment branch, that branch is not tantamount to a strict liability offense; it requires a culpable mental state: the defendant must willfully (i.e., purposefully or intentionally) cause or permit the child to be placed in a situation where there is a serious physical danger or a serious health hazard to the child; given this purpose or intent, the accused must subjectively know or be aware of the danger or hazard.

Peabody characterized our holding in Beaugez in the following terms: ". . . Beaugez holds that section 273a, subdivision (1) [now § 273a(a)] does not require a criminal intent, but only a negligent placing of a child in a dangerous situation . . . ." Beaugez, however, carefully noted that the statute condemns "the intentional placing of a child, or permitting him to be placed, in a [seriously dangerous] situation . . . ."

Under our interpretation of the felony willful endangerment offense, there is no constitutional due process concern about vagueness. Under the mental state element of the offense, the accused must act or fail to act with the intent, or for the purpose, of placing the child in a situation where there is a serious physical danger or a serious health hazard to the child. Given this required intent or purpose, the accused must subjectively know or be aware of the danger or hazard. Under the conduct element of the offense, the accused must cause or permit a child to be placed in such a situation. Felony willful endangerment also requires an additional element, described as a context element: the act or failure to act must occur "under circumstances or conditions likely to produce great bodily harm or death." So construed, the felony willful endangerment branch provides "the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

Finally, Walker v. Superior Court poses no obstacle to our interpretation of section 273a(a). In Walker, the Supreme Court concluded that a Christian Scientist mother could be prosecuted for criminal negligence-based involuntary manslaughter and felony willful endangerment. In that case, the mother chose to treat her four-year-old daughter with prayer rather than obtain any medical treatment; the child lay seriously ill for 17 days, including a sustained period before death during which she lost weight, grew disoriented and irritable, and suffered heavy and irregular breathing. The child died of acute purulent (containing or secreting pus) meningitis.

As noted in Sargent, the Walker court (citing Peabody) merely accepted the defendant’s broad statement there that section 273a requires criminal negligence in the commission of the offending act. The Walker court did not analyze the mental state required for willful endangerment, but simply refuted the defendant’s contention that she could not be found criminally negligent as a matter of law; the defendant in Walker, in any event, also faced a prosecution for involuntary manslaughter based properly on criminal negligence. We have previously discussed how Peabody went astray in determining that the mental state for willful endangerment is criminal negligence. Justice Mosk, who authored Walker, obviously did not view Walker as an impediment to the intent-based mental state analysis he offered for section 273a(a) in his concurring opinion in Sargent. Indeed, in that concurring opinion, Justice Mosk characterized "Peabody and its progeny" as "decisions [which] did not read what the statutory language stated as much as state what they had read into such language"; and he added: "[Section 273a(a)] obviously includes a mental element, which is indicated by ‘willfulness.’"

D. Applying the Required Mental State for Felony Willful Endangerment to the Present Facts

That brings us to the facts at hand. Valdez was charged with and convicted of felony willful endangerment under section 273a(a) for leaving Thalia in Lebron’s care. As the prosecutor succinctly put it in closing argument: "We’re not charging Eva Valdez with actually doing the abuse, but we[’]re charging her . . . for placing [Thalia] in a situation which clearly and obviously presented a danger to this baby."

In relevant part, the trial court instructed the jury on the section 273a offense as follows:

". . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"[A] person who had care or custody of a child . . . [¶] 

". . . willfully caused or as a result of criminal negligence permitted the child to be placed in a situation where his or her person or health was in danger.

"[T]he person’s conduct occurred under circumstances likely to produce great bodily harm or . . . death." (Italics added.)

Under our interpretation of the mental state element for section 273a(a) felony willful endangerment, the trial court misinstructed on this element of the offense. Using the standard CALJIC instruction, the trial court did not instruct in terms of "willfully permitted." Instead the court instructed: "as a result of criminal negligence permitted." (Italics added.)

As we have defined the mental state element of the felony willful endangerment branch of section 273a(a), the defendant must willfully cause or willfully permit (i.e., purposefully or intentionally cause or permit) the child to be placed in a situation where there is a serious physical danger or a serious health hazard to the child. Given this required purpose or intent, the accused must subjectively know or be aware of this danger or hazard. There is no "criminal negligence" mental state element in this branch. Although it understandably used the standard CALJIC instruction, the trial court erred.

The question is whether this error prejudiced Valdez. We must conclude it did.

The standard of prejudice for misinstruction on an element of an offense is "whether it appears ‘beyond a reasonable doubt that the error . . . did not contribute to the verdict obtained.’" We cannot say, beyond a reasonable doubt, that the misinstruction here did not contribute to the verdict obtained.

As stated by the prosecutor in closing argument, the prosecution’s "theory" of the case was that "as a result of [Valdez’s] criminal negligence . . . [Valdez] permitted the child to be placed in a situation where [the child’s] person or health was in danger." "[C]riminal negligence," the prosecutor emphasized, "is really the heart of the case from a legal standpoint." The prosecutor explained: "So the criminal standard is basically summed up in this. . . . Could a reasonable person looking at all the circumstances have seen this coming? . . . [¶]  What I do have to prove is that [Valdez] should have known, based on this objective standard[,] that continued . . . exposure to [Lebron] would either cause [Thalia] serious bodily injury or death, and would an ordinary prudent person have seen that. . . . [The] . . . criminal standard is that ordinary prudent people like us looking at these facts, what would we do?"

The defense counsel echoed these comments in his argument, explaining, "[W]hat the charge is in this case is as a result of criminal negligence, did Miss Valdez permit the child to be placed in a situation where her person or health was endangered, and [did] that person’s conduct occur[] under circumstances likely to produce great bodily harm or death? That’s what th[e] charge is."

The prosecutor arguably did not give Valdez even the benefit of the criminal negligence standard, let alone intent. The prosecutor’s argument was more in line with ordinary negligence.

In a recent decision, People v. Kinkead, the Fourth Appellate District concluded that the instruction at issue here did not prejudice the defendant there on his section 273a(a) conviction. To reach this conclusion, the Kinkead court relied on the section 12022.95 enhancement that was also found true. Section 12022.95, in relevant part, allows for a sentence enhancement for "[a]ny person convicted of a violation of [s]ection 273a" if, "having the care or custody of any child, under circumstances likely to produce great bodily harm or death, [that person] willfully causes or permits that child to be injured or harmed, and that injury or harm results in death . . . ." Kinkead noted that to find this enhancement true, the jury there had to find, as instructed, that the defendant "intentionally permitted the victim to be injured or harmed" and "willfully permitted the victim to be harmed or injured." On the "willfully permitted" instruction, the jury in Kinkead also received the proper section 7 definition of "willfully."

A section 12022.95 enhancement was alleged and found true against Valdez. In contrast to Kinkead, however, the Valdez jury was simply instructed, regarding this enhancement, "willfully caused or permitted said child to be injured or harmed." No section 7 definition of "willfully" was provided. Moreover, the grammatical structure of this enhancement instruction was similar to the structure of the instruction for the section 273a(a) charge given here, "willfully caused or as a result of criminal negligence permitted" the child to be placed in a dangerous situation.

Furthermore, the prosecutor, in his initial closing argument, did not even mention the section 12022.95 enhancement. The defense counsel mentioned it briefly in passing. Then the prosecutor stated in his reply closing argument:

"Just real quickly, [defense counsel] reminded me about the enhancement. There’s an enhancement, and we call it enhancement. And you’ll see [it in] the information.

"All it says is this, . . . if you find that . . . Eva Valdez has committed this crime, then you need to find an additional element. And the element, although it uses a lot of words, it basically calls you to find whether or not the child was killed, whether or not we actual[ly] have a dead child in this case.

"[S]pecifically it says, that Eva Valdez, under circumstances likely to cause great bodily harm or death, willfully permitted Thalia to suffer or be inflicted upon unjustifiable pain or injury that resulted in her death.

". . . . . . . . . . . . . . . . . . . . . . . . . .

"The additional step [i.e., the enhancement] is did that great bodily harm result in death? And we know that that is truth. So then we know the enhancement is true, and that’s all there is to that."

Although the prosecutor noted that for the section 12022.95 enhancement to apply, Valdez must have "willfully permitted," this brief remark did not actually track the instruction language for the enhancement of "willfully caused or permitted." More importantly, the tenor of the prosecutor’s comments was that the death of the child equated to the enhancement.

Nevertheless, given the evidence of coincidental injuries as well as the evidence of four friends and acquaintances suggesting to Valdez that she leave Lebron or at least find someone else to watch her children, along with Valdez’s own acknowledgment of this latter point, there is sufficient evidence, contrary to Valdez’s argument, to sustain a section 273a(a) conviction against her. In light of our resolution, we need not consider any of Valdez’s other contentions.

On appeal, Lebron contends (1) the Legislature, in defining the section 273ab child assault offense, unconstitutionally failed to provide a rational correlation between the required mental state and the prescribed punishment; (2) section 273ab provides for cruel and unusual punishment; (3) the trial court erred by instructing with CALJIC No. 17.02 (the two counts charged are distinct) rather than with CALJIC No. 17.03 (the two counts charged are in the alternative); and (4) CALJIC No. 17.41.1 (jurors advising of juror misconduct) impermissibly intrudes into the secrecy and autonomy of jury deliberations. We disagree with Lebron’s contentions and affirm the judgment against him.

1. Constitutionality of Section 273ab Offense in Terms of Mental State and Punishment

Lebron contends that section 273ab violates constitutional principles, primarily due process, which bar the Legislature from defining a crime so as to provide an irrational correlation between the required mental state and the prescribed punishment. This contention touches on the alleged inconsistency between Lebron’s convictions for involuntary manslaughter and for section 273ab, as well as on principles of strict liability, but the contention is centered on the related point concerning the Legislature’s constitutional authority to define crimes and prescribe corresponding punishment.

Section 273ab provides:

"Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child’s death, shall be punished by imprisonment in the state prison for 25 years to life. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 [murder] or Section 189 [distinguishing first and second degree murder]."

The court in People v. Albritton rejected an argument that verdicts of involuntary manslaughter and section 273ab child abuse are inconsistent.

The defendant in Albritton argued that the two verdicts were inconsistent because in returning the involuntary manslaughter verdict the jury rejected a murder charge; the Albritton defendant relied on language from a decision of this court (People v. Preller (1997) 54 Cal.App.4th 93, 97-98 (Preller)), which characterized section 273ab as a "murder statute." Lebron makes a similar argument here.

In rejecting this inconsistency argument, the court in Albritton stated that Preller’s characterization of section 273ab as a "murder statute" was a mere general observation "principally noting [that] the punishment for section 273ab was ‘commensurate with the punishment for first degree murder.’" Albritton characterized section 273ab as a "‘homicide statute.’" That took care of legal inconsistency.

As for factual inconsistency, Albritton noted there was "overwhelming evidence" that "[the victim] Ashley died of shaken baby syndrome and that Albritton was the individual who shook Ashley." Substantial evidence supported both verdicts: the verdict for involuntary manslaughter, because Albritton caused Ashley’s death by an act which might produce death without due caution and circumspection; and the verdict for section 273ab assault, because Ashley, who was under eight years old, died at the hands of Albritton, a caretaker, who used force that a reasonable person would believe was likely to cause great bodily injury.

Albritton’s conclusion on inconsistency was buttressed by the subsequent decision in Orlina v. Superior Court. Orlina concluded that involuntary manslaughter is a lesser-related offense of section 273ab. Orlina contrasted section 273ab’s requirement of "‘force that to a reasonable person would be likely to produce great bodily injury’" with involuntary manslaughter’s second statutory definition of an "act which might produce death . . . without due caution [and circumspection].’" Said Orlina: "Section 273ab is predicated on a probability of great bodily injury to the victim [citation], while the second definition of involuntary manslaughter is based on the possibility of the death of the victim. Section 273ab speaks [at the least] to reckless conduct[] (‘likely to produce’ injury)[,] while the second definition of involuntary manslaughter encompasses careless or negligent conduct (‘without due caution and circumspection’). It is therefore apparent that the elements of involuntary manslaughter are not necessarily encompassed within the elements of section 273ab. Involuntary manslaughter is a lesser related rather than a lesser included offense of [section 273ab]."

Albritton also rejected an argument that section 273ab is an unconstitutional strict liability offense in which a murder sentence is imposed for an offense without a mental state element. Lebron has made a similar argument.

Stripped to its essence, though, Lebron’s principal point is that he has in effect been found guilty of first degree premeditated murder (based upon section 273ab’s prescribed punishment) even though the jury found he did not have the mental state for such murder, but rather only that for involuntary manslaughter. Lebron contends the Legislature is constitutionally limited in defining the elements of a crime by due process principles, by the cruel/unusual punishment proscription, and by the mental state requirement. According to Lebron, the Constitution does not permit the Legislature to define crimes with a relatively lower or generalized level of mental culpability, but prescribe punishments which are comparable to those imposed for offenses requiring a much greater level of mental culpability.

Albritton confronted an almost identical challenge to section 273ab, and answered it as follows:

As the court observed in People v. Curtiss, "Children have always been recognized as a proper subject for distinctive legislation."

Lebron claims that, by acquitting him of second degree murder and convicting him of involuntary manslaughter, the jury found that he lacked malice and killed Thalia by acting negligently. He wonders how this negligent conduct can be used to convict and punish him under section 273ab as if he were a first degree, premeditated murderer.

2. Cruel and/or Unusual Punishment

Lebron argues, "[i]n conjunction with the arguments presented in the preceding section [on section 273ab’s constitutionality in terms of mental state and punishment], . . . the mandatory 25-year-to-life term imposed for violation of section 273ab constitutes cruel and unusual punishment [under the state and federal Constitutions] when considered in light of the mental state required to violate that statute and in light of the jury’s finding that [Lebron] only committed involuntary manslaughter. Given the implicit findings that [Lebron] only acted with criminal negligence, not with malice aforethought or specific intent to kill, the punishment imposed below is disproportionate to his level of culpability."

For the reasons expressed in the preceding section of this opinion, we disagree with this argument.

Furthermore, a sentence may violate the cruel or unusual punishment proscription of the California Constitution if it is so disproportionate to the crime for which it is imposed that it "shocks the conscience and offends fundamental notions of human dignity." Under this test, a court examines (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the same jurisdiction; and (3) how the punishment compares for the same offense in other jurisdictions.

As for the nature of the offense, Lebron notes that the jury found that he acted with criminal negligence, and not with malice aforethought or an intent to kill, when it acquitted him of murder and convicted him of involuntary manslaughter. This is a good point, but it does not tell the whole story.

The jury also convicted Lebron of violating section 273ab. In the abstract, this offense requires an intentional assault by a caretaker on a child under eight years of age with force that (1) objectively is likely to result in great bodily injury; and (2) results in the child’s death. By any measure, this is an egregious offense. Involuntary manslaughter is a lesser-related offense of section 273ab.

The victim here, Thalia, was just 11 months old. The pathologist who performed the autopsy testified that a "significant amount of force" was necessary to produce Thalia’s fatal injuries, a force akin to a car crash or a fall from more than 10 feet. Moreover, Lebron relies heavily on the "due caution and circumspection" branch of involuntary manslaughter, but the jury was also instructed that it could find involuntary manslaughter if it found that death occurred "[d]uring the commission of [an] unlawful act which is dangerous to human life under the circumstances of its commission," and that an "‘unlawful act’ consists of a violation of Penal Code section 240, assault".

As for the nature of the offender, Lebron notes he was young at the time of the offense, barely 20 years old. He also notes he had been employed and did not have a serious criminal record. But Lebron’s criminal record consisted of an adult misdemeanor conviction for carrying a concealed weapon in a car, and a juvenile adjudication for vehicle burglary. Evidence also showed that Thalia was being physically abused over a period of time that coincided with Lebron living at Thalia’s home; this abuse encompassed serious injuries, including a serious burn, a broken arm and a readily noticeable black eye.

As for the third prong of the cruel/unusual punishment analysis, Lebron has failed to meet his burden of proving "a significant disproportion between [the] challenged penalty and that imposed for the same crime by our sister states . . . ." He does not mention this factor.

Lebron’s unstayed sentence of 25 years to life is not akin to those cited as unconstitutionally excessive in People v. Dillon: life sentences for second-offense indecent exposure; for four counts of forged checks totaling less than $500; and for second-offense nonviolent child molesting. We conclude that Lebron’s sentence is not so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity.

Under California law, Lebron’s punishment is not cruel or unusual. Under the federal standard of cruel and unusual, we can say the same.

In Harmelin v. Michigan, the United States Supreme Court determined that the defendant’s sentence of life without parole for possession of 672 grams of cocaine was not cruel and unusual. And in Rummel v. Estelle, the United States Supreme Court upheld against an Eighth Amendment challenge a life sentence (with the possibility of parole) under a Texas recidivist statute for a defendant convicted of obtaining $120.75 by false pretenses after incurring previous convictions for fraudulent use of a credit card ($80 worth of goods/services) and passing a forged check (in the amount of $28.36).

3. CALJIC Nos. 17.02 and 17.03

As given here, CALJIC No. 17.02 provided:

"Each count charges a distinct crime. You must decide each count separately. [¶]  The defendant may be found guilty or not guilty of either or both of the crimes charged in [c]ounts 1 and 2. [¶]  Your finding as to each count must be stated in a separate verdict."

As requested to be given here, CALJIC No. 17.03 would have provided in pertinent part:

"The defendant is accused in Count One of having committed the crime of Murder and in Count Two of having committed the crime of Assault Resulting in Death of a Child. These charges are made in the alternative and in effect allege that the defendant committed an act or acts which constitute[s] either the crime of Murder or the crime of Assault Resulting in Death of a Child. If you find that the defendant committed an act or acts constituting one of the charged crimes, you then must determine which of such crimes so charged was thereby committed. [¶]  In order to find the defendant guilty you must all agree as to the particular crime committed, and, if you find the defendant guilty of one, you must find him not guilty of the other."

The law is settled in California "that convictions may be had for more than one offense committed by means of a single act or series of acts, where there is an element of one crime not found in the other and where in a prosecution for either one of the offenses there could not have been a conviction of the other. [Citations.]"

Lebron’s two convictions for involuntary manslaughter and section 273ab satisfy the principle set forth in Thomas and Orlina. Section 273ab is based on a probability of great bodily injury, while the "due caution" aspect of involuntary manslaughter is based on the possibility of death. "[T]he elements of involuntary manslaughter are not necessarily encompassed within the elements of section 273ab. Involuntary manslaughter is a lesser related rather than a lesser included offense of [section 273ab]."

Furthermore, section 273ab states that "[n]othing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187 or Section 189 [statutes covering the offense of murder]." Under this provision of section 273ab, as we noted in Preller, "the prosecution has discretion to charge under the more traditional murder statutes . . . in addition to charging a violation of section 273ab."

Finally, the Use Note to CALJIC No. 17.03 provides, "Where defendant may be legally convicted of more than one count, use CALJIC 17.02."

We conclude the trial court did not err in instructing with CALJIC No. 17.02 instead of CALJIC No. 17.03. The jury properly convicted Lebron using both counts charged against him and the trial court properly stayed the sentence on the involuntary manslaughter conviction pursuant to section 654.

4. CALJIC No. 17.41.1

Lebron contends the trial court erred prejudicially when it instructed the jury with CALJIC No. 17.41.1. In his opening brief, Lebron merely joins in Valdez’s argument that this instruction impermissibly intruded into the secrecy and autonomy of jury deliberations.

As given here, CALJIC No. 17.41.1 provided:

"The integrity of the trial jurors is important at all times during their deliberations and that they conduct themselves as required by these instructions. [¶]  Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment[,] or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."

In his opening brief, Lebron does not make any independent argument concerning any error in instructing with CALJIC No. 17.41.1. Instead, he simply joins in Valdez’s argument in her opening brief and adopts that argument by reference.

In her opening brief, Valdez claims she was prejudiced by the CALJIC No. 17.41.1 instruction because it chilled the jury’s discussion of the child endangerment count. She argues that the prosecutor, in essence, told the jurors that her defense to that count was legally incorrect and contrary to their instructions. Any juror persuaded by the prosecutor’s argument, Valdez contends, would feel duty-bound to immediately report to the judge any fellow juror who expressed an intent to accept the defense’s argument.

Valdez’s argument on the prejudice engendered by CALJIC No. 17.41.1 is directed exclusively at the child endangerment count. Valdez was prosecuted on this count, but Lebron was not. Consequently, Lebron has made no argument as to how CALJIC No. 17.41.1 prejudiced him. We therefore deem such a contention waived.

The judgment against Valdez is reversed. The judgment against Lebron is affirmed.

(CERTIFIED FOR PUBLICATION.)

DAVIS , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.