Section 3500 | CALCRIM (Jury Instructions)

People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d 835, 970 P.2d
409]; see People v. Atkins (1975) 53 Cal.App.3d 348, 361 [125 Cal.Rptr. 855];
People v. Wright (1976) 60 Cal.App.3d 6, 14 [131 Cal.Rptr. 311].
COMMENTARY
Any violation of Penal Code section 273a(a) must be willful. (People v. Smith
(1984) 35 Cal.3d 798, 806 [678 P.2d 886]; People v. Cortes (1999) 71 Cal.App.4th
62, 80 [83 Cal.Rptr.2d 519]; but see People v. Valdez (2002) 27 Cal.4th 778, 789
[118 Cal.Rptr.2d 3, 42 P.3d 511] [the prong punishing a direct infliction of
unjustifiable physical pain or mental suffering does not expressly require that the
conduct be willful].) Following Smith and Cortes, the committee has included
“willfully” in element 1A regarding direct infliction of abuse until there is further
guidance from the courts.
LESSER INCLUDED OFFENSES
•
Attempted Child Abuse. Pen. Code, §§ 664, 273a(a).
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Misdemeanor Child Abuse. Pen. Code, § 273a(b).
RELATED ISSUES
Care or Custody
“The terms ‘care or custody’ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (People v.
Toney (1999) 76 Cal.App.4th 618, 621–622 [90 Cal.Rptr.2d 578] [quoting People v.
Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257]].)
Prenatal Conduct
Penal Code section 273a does not apply to prenatal conduct endangering an unborn
child. (Reyes v. Superior Court (1977) 75 Cal.App.3d 214, 217–218, 219 [141
Cal.Rptr. 912].)
Unanimity
The court has a sua sponte duty to instruct on unanimity when the prosecution has
presented evidence of multiple acts to prove a single count. (People v. Russo (2001)
25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].) However, the court does
not have to instruct on unanimity if the offense constitutes a “continuous course of
conduct.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115–116 [127 Cal.Rptr.2d
777].) Child abuse may be a continuous course of conduct or a single, isolated
incident. (Ibid.) The court should carefully examine the statute charged, the
pleadings, and the evidence presented to determine whether the offense constitutes a
continuous course of conduct. (Ibid.) See generally CALCRIM No. 3500,
Unanimity.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 161–168.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
ASSAULTIVE AND BATTERY CRIMES
CALCRIM No. 821
543

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General Criminal Intent Required for Direct Infliction of Pain or Suffering. See
People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d 835, 970 P.2d
409] [in context of parallel child abuse statute].
COMMENTARY
Any violation of Penal Code section 368(b)(1) must be willful. (See People v. Smith
(1984) 35 Cal.3d 798, 806 [201 Cal.Rptr. 311, 678 P.2d 886]; People v. Cortes
(1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519] [both in context of parallel child
abuse statute]; but see People v. Valdez (2002)