75 Cal.App.3d 214, 19134, Reyes v. Superior Court

CourtCalifornia Court of Appeals
Writing for the Court[11] Kaufman
Citation75 Cal.App.3d 214,141 Cal.Rptr. 912
PartiesReyes v. Superior Court
Date18 November 1977
Docket Number19134

Page 214

75 Cal.App.3d 214

141 Cal.Rptr. 912

Margaret Velasquez REYES, Petitioner,

v.

SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent;

The PEOPLE of the State of California, By James M. CRAMER, District Attorney of the County of San Bernardino, Real Party in Interest.

Civ. 19134.

California Court of Appeal, Fourth District, Second Division

Nov. 18, 1977.

Page 215

Alfredo Rivas, Ontario, for petitioner.

James M. Cramer, Dist. Atty., and Charles D. Weede, Jr., Deputy Dist. Atty., for real party in interest.

Gerald F. Uelmen and Jane Wolf Eldridge, Los Angeles, for California Conference of Methadone Programs as amicus curiae.

Page 216

OPINION

KAUFMAN, Associate Justice.

Petitioner Margaret Velasquez Reyes is charged by information with two counts of felony child endangering in violation of Penal Code section 273a(1). Her motion to set aside the information (Pen.Code, § 995) was denied, and she seeks a writ of prohibition. (Pen.Code, § 999a.) We issued an alternative writ 1 and an order staying trial.

The facts are simple. Petitioner was addicted to the use of heroin 2 and was pregnant. She was warned by a public health nurse that, if she continued using heroin and failed to seek prenatal medical care, the health, and even the life, of any child born to her would be endangered. Nevertheless, between September 1 and October 31, 1976, the final two months of her pregnancy, petitioner continued using heroin and failed to seek prenatal medical care. On October 31, 1977, petitioner gave birth to twin boys. They were born addicted to heroin and suffered withdrawal.

Numerous contentions are made in support of the proposition that petitioner has been committed without reasonable or probable cause (Pen.Code, § 995). We are persuaded that the word "child" as used in Penal Code section 273a(1) was not intended to refer to an unborn child and that petitioner's prenatal conduct does not constitute felonious child endangering within contemplation of the statute.

Penal Code section 273a(1) as it existed at the time of the alleged offenses read in pertinent part: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, . . . having the care or custody of any child, . . . willfully 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 years." 3

Page 217

We are confident our phraseology of the dispositive issue describes with reasonable accuracy the problem presented. It is true as the district attorney points out that petitioner's children were ultimately born alive and that any danger to their person or health materialized only upon their birth. However, materialization of the danger, that is, harm to the child, is not an element of the offense defined in the statute. (People v. Harris, 239 Cal.App.2d 393, 398, 48 Cal.Rptr. 677.) It is not contended that petitioner did anything to endanger the persons or health of the children after their birth, and if petitioner placed the children in such a situation that their persons or health were endangered, she did so when she used heroin and failed to seek prenatal medical care during the last two months of her pregnancy, that is, when the children were yet unborn. Consistent with this analysis, the information charges the crimes were committed between September 1 and October 31, 1976.

As respects the question whether it was meant to refer to an unborn child, the statutory use of the word "child" is at best ambiguous. We think it of little benefit to contrast and compare dictionary definitions of the word "child" in vogue on various dates between enactment of section 273a(1) or its statutory predecessors and its most recent amendment. We do note that an unborn child has been held not to be a "human being" within contemplation of the murder statute, Penal Code section 187, (Keller v. Superior Court, 2 Cal.3d 619, 631, 87 Cal.Rptr. 481) or the manslaughter statute, Penal Code section 192, (People v. Carlson, 37 Cal.App.3d 349, 355, 112 Cal.Rptr. 321); that an unborn child has been said not to be included in the designation "minor child" in the failure to provide statute, Penal Code section 270, (People v. Yates, 114 Cal.App.Supp. 782, 785 (cited with...

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7 practice notes
  • Homologizing pregnancy and motherhood: a consideration of abortion.
    • United States
    • Michigan Law Review Vol. 94 Nbr. 2, November - November 1995
    • November 1, 1995
    ...reluctance to apply existing child abuse and criminal laws to events that occur during pregnancy. See, e.g., Reyes v. Superior Court, 141 Cal. Rptr. 912, 914-15 (Ct. App. 1977) (holding that child endangering statute does not refer to an unborn child or include a woman's alleged drug use du......
  • Protecting pregnant women: a guide to successfully challenging criminal child abuse prosecutions of pregnant drug addicts.
    • United States
    • Journal of Criminal Law and Criminology Vol. 99 Nbr. 3, June 2009
    • June 22, 2009
    ...began to use criminal child abuse laws to punish prenatal drug use by mothers, although not by fathers). (26) Reyes v. Superior Court, 75 Cal. App. 3d 214 (Ct. App. 1977). (27) Id. at 219. (28) Johnson v. State, 578 So. 2d 419 (Fla. Dist. Ct. App. 1991), rev'd, 602 So. 2d 1288 (Fla. 1992). ......
  • Pregnant drug users, fetal persons, and the threat to Roe v. Wade.
    • United States
    • Albany Law Review Vol. 62 Nbr. 3, March - March 1999
    • March 22, 1999
    ...violate legislative intent, offend due process notions of notice, and render statute impermissibly vague); Reyes v. Superior Court, 141 Cal. Rptr. 912 (Ct. App. 1977) (dismissing child abuse charges filed against a woman who was pregnant and addicted to heroin, finding that the statute was ......
  • Monitoring motherhood.
    • United States
    • Yale Law Journal Vol. 106 Nbr. 3, December - December 1996
    • December 1, 1996
    ...child abuse statutes. Until Whitner, all state appellate courts had overturned such convictions. See, e.g., Reyes v. Superior Court, 141 Cal. Rptr. 912, 915 (Ct. App. 1977); Commonwealth v. Welch, 864 S.W. 2d 280, 284 (Ky. 1993); Sherriff v. Encoe, 885 P.2d 596, 598 (Nev. 1994); State V. Gr......
  • Request a trial to view additional results
7 books & journal articles
  • Homologizing pregnancy and motherhood: a consideration of abortion.
    • United States
    • Michigan Law Review Vol. 94 Nbr. 2, November - November 1995
    • November 1, 1995
    ...reluctance to apply existing child abuse and criminal laws to events that occur during pregnancy. See, e.g., Reyes v. Superior Court, 141 Cal. Rptr. 912, 914-15 (Ct. App. 1977) (holding that child endangering statute does not refer to an unborn child or include a woman's alleged drug use du......
  • Protecting pregnant women: a guide to successfully challenging criminal child abuse prosecutions of pregnant drug addicts.
    • United States
    • Journal of Criminal Law and Criminology Vol. 99 Nbr. 3, June 2009
    • June 22, 2009
    ...began to use criminal child abuse laws to punish prenatal drug use by mothers, although not by fathers). (26) Reyes v. Superior Court, 75 Cal. App. 3d 214 (Ct. App. 1977). (27) Id. at 219. (28) Johnson v. State, 578 So. 2d 419 (Fla. Dist. Ct. App. 1991), rev'd, 602 So. 2d 1288 (Fla. 1992). ......
  • Pregnant drug users, fetal persons, and the threat to Roe v. Wade.
    • United States
    • Albany Law Review Vol. 62 Nbr. 3, March - March 1999
    • March 22, 1999
    ...violate legislative intent, offend due process notions of notice, and render statute impermissibly vague); Reyes v. Superior Court, 141 Cal. Rptr. 912 (Ct. App. 1977) (dismissing child abuse charges filed against a woman who was pregnant and addicted to heroin, finding that the statute was ......
  • Monitoring motherhood.
    • United States
    • Yale Law Journal Vol. 106 Nbr. 3, December - December 1996
    • December 1, 1996
    ...child abuse statutes. Until Whitner, all state appellate courts had overturned such convictions. See, e.g., Reyes v. Superior Court, 141 Cal. Rptr. 912, 915 (Ct. App. 1977); Commonwealth v. Welch, 864 S.W. 2d 280, 284 (Ky. 1993); Sherriff v. Encoe, 885 P.2d 596, 598 (Nev. 1994); State V. Gr......
  • Request a trial to view additional results

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