People v. Beaugez

• Decision Date: 05 March 1965
• Docket Number: Cr. 3560
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Barbara BEAUGEZ and Jerry E. Beaugez, Defendants and Appellants.

Page 28

43 Cal.Rptr. 28

232 Cal.App.2d 650

The PEOPLE of the State of California, Plaintiff and Respondent, v. Barbara BEAUGEZ and Jerry E. Beaugez, Defendants and Appellants.

Cr. 3560.

District Court of Appeal, Third District, California.

March 5, 1965.

Rehearing Denied March 31, 1965.

Hearing Denied April 28, 1965.

Robert J. Nareau, Woodland, for appellants.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., by Doris H. Maier, Asst. Atty. Gen., by Edward Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Defendants were convicted by a jury under an indictment charging them with 'endangering the life or limb of a child, a violation of Section 273a of the Penal Code of the State of California, in that on or about the 28th day of October 1963 * * * they were the persons who wilfully permitted a child, to wit: Jerry E. Beaugez, Jr., age five months, to be placed in such situation that its life or limb might be endangered.' The trial court denied defendants' motion for a new trial and thereafter ordered that both defendants be granted probation for a period of three years, judgment and sentence being suspended during defendants' compliance with the terms of probation. The notice of appeal 'from the judgment and sentence pronounced and rendered' will be treated as an appeal from the order granting probation. (Penal Code sec. 1237, subd. 1; People v. Robinson, 43 Cal.2d 143, at p. 145, 271 P.2d 872--syllabus (3), Rules on Appeal, Rule 31.)

On appeal defendants argue seventeen contentions of prejudical error, only four of which merit discussion. The rest are either duplicative, redundant, or raise propositions so obviously unsound that they should, and will, be disregarded.

The contentions we discuss are: (1) insufficiency of the evidence to support the verdict, (2) that the portion of Penal Code section 273a under which defendants are charged is void for vagueness, (3) that the jury's verdicts were coerced by the court, and (4) that questioning of a psychiatrist called by defendants was improperly circumscribed by the trial court. Although we reject all contentions, the point that the statute is so uncertain as to violate due process has sufficient substance that we deem treatment thereof to have possible future, citable value.

Preliminarily, we discuss the contention that the evidence is insufficient to support the verdicts. Argument on this point is prefaced by the statement: 'In order that the Court fully appreciate this ground of appellants' contentions a reading of the entire transcript of the case becomes necessary.' That is not our obligation. (Grand v. Griesinger, 160 Cal.App.2d 397, 403, 325 P.2d 475; Devers v. Greenwood, 139 Cal.App.2d 345, 351-352, 293 P.2d 834; Fox v. Erickson, 99 Cal.App.2d 740, 742, 222 P.2d 452.) Appellants' brief contains a two-page statement of facts, completely inadequate as the basis of an insufficiency-of-evidence appeal. Rule 15, subdivision (a), is disregarded. ¹ Nevertheless, we have examined the record. The facts, sufficient to make the discussion to follow meaningful, are these:

On August 24, 1963, defendant Jerry E. Beaugez took his son, jerry, Jr., then three months old, to the Sacramento County Hospital. His stated reason was that he had inadvertently caused a milk bottle to fall upon the child, producing swelling and bruises on and around the nose and in the periorbital area. Examination by the doctor at the hospital, however, disclosed numerous other bruises and abrasions: in the midportion of the back, the right shoulder, the left cheek and the scalp. There was evidence of bleeding (seemingly internal) about the ribs. The baby was irritable and had a high-pitched cry. He was pale, mottled and lethargic. There was a pinkish discharge from the child's nostrils. After a five-day stay, the child (because the parents lived in Yolo County) was removed to the Yolo County General Hospital. Examination there produced findings similar to those at the Sacramento County Hospital. The impression upon entry was 'possible physical abuse.' X-rays taken revealed a calloused fracture in the midclavicular region. This could have been sustained during birth. The medical testimony was sharply conflicting as to whether the X-rays also showed rib fractures. The prosecution's radiologist stated they did; defendants' orthopedist, Dr. Herbert Sanderson, stated they did not, nor did X-rays taken at his direction just before the trial.

The child remained in the hospital for approximately six weeks. Although the parents had contended the child bruised easily, observation during the six-week stay in the hospital showed no evidence of this. The baby was in good health when discharged.

The child was discharged to his parents. They brought him back again on October 28, 1963, for a condition which X-rays disclosed to be a spiral fracture of the left humerus. At the trial defendants produced a witness, defendant Barbara's sister, Deloris Woolsey, who attempted to account for this. She described an incident in which she, having noted a discoloration of the child's arm, attributed to a 'pinched nerve', had rotated the child's arm to start blood circulation. She also testified that she had then put the child's arm in a sling and had placed him in a stroller from which he had accidentally fallen onto the pavement. The jury could have received this testimony as an explanation of the fractured arm with great dubiety. Examination by the admitting physicians at the hospital showed that the fracture had resulted from a very severe twisting motion. (Even defendants' expert had stated it was possible but not probable that the fracture had been caused in the manner described.)

The defenses at the trial were: (1) the fracture of the clavicle was produced at birth, (2) the badly swollen and bruised nose and eye were explained by the testimony of the father who, as stated above, said he had accidentally knocked over a milk bottle; (3) the other bruises were said to have been produced by a fall from a davenport when the child was three weeks old (but Barbara stated this had produced no bruises and no one attempted to account for bruises from this cause existing two months later). The scalp condition was stated to have been caused by the child's rubbing his head while lying in a bassinet (but again Barbara's testimony was vague and indefinite as to the parts of the child's body involved); (4) Carroll Brown, Barbara's mother, described an incident during her care of the child when she had struck the child to stop a choking spell; (5) the attempt to explain the spiral arm fracture was as stated above. Without attempting further detail, we think it may be fairly stated that the testimony of defendants and their witnesses was in many respects inconsistent, contradictory and unbelievable. While the evidence against defendants was circumstantial, the inferences reasonably to be drawn therefrom not only justified the jury's verdicts and therefore preclude interference by a reviewing court therewith (People v. Newland, 15 Cal.2d 678, 104 P.2d 778), but also these inferences point so conclusively to the guilt of the defendants that it would be difficult to conceive how a jury could have found the defendants innocent.

The principal contention of defendants is that the portion of Penal Code section 273a under which they were charged is void for vagueness.

Section 273a of the Penal Code provides as follows:

'Any person who willfully causes or permits any child to suffer, or who inflicts thereon unjustifiable physical pain or mental suffering, and whoever, having the care or custody of any child, causes or permits the life or limb of such child to be endangered, or the health of such child to be injured, and any person who willfully causes or permits such child to be placed in such situation that its life or limb may be endangered, or its health likely to be injured, is punishable by * * *.'

In People v. McCaughan, 49 Cal.2d 409, on page 414, 317 P.2d 974, on page 977, the court (per Justice Traynor) quoting from Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322, said:

'* * * '[A] statute which either forbids or requires he doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.''

The opinion also observes (on page 414, 317 P.2d on page 977):

'* * * A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it. [Citations] * * * A statute will * * * be upheld, despite the fact that the acts it prohibits are defined in vague terms, if it requires an adequately defined specific intent. [Citations] A court, however, may not create a standard (Lanzetta v. State of New Jersey, supra, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Connally v. General Const. Co., supra, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322), and a specific intent defined in the same vague terms as those defining the prohibited acts does not make a statute acceptably definite.'

Penal Code section 273a reaches three types of offenders in their conduct relating to children: (1) the person who wilfully inflicts unjustifiable physical pain or mental suffering upon a child or causes or permits his to suffer; (2) the custodian of a child who causes or permits the child's life or limb to be endangered or his health to be injured, or (3) the person who wilfully causes or permits a child to be placed in such a position that its life or limb 'may be endangered or its health likely to be injured.'

In a case falling within the first of the three categories, People v. Curtiss, 116 Cal.App.Supp. 771, at pp. 778-781, 300 P. 801, the court (per Yankwich, J.) upheld its provisions against the attack that it was insufficiently certain...