People v. Ewing

• Decision Date: 17 August 1977
• Docket Number: Cr. 8912
• Citation: 140 Cal.Rptr. 299,72 Cal.App.3d 714
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Earl EWING, Defendant and Appellant.

Page 299

140 Cal.Rptr. 299

72 Cal.App.3d 714

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Earl EWING, Defendant and Appellant.

Cr. 8912.

Court of Appeal, Third District, California.

Aug. 17, 1977.

Hearing Denied Oct. 13, 1977.

Junius T. Podrug, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi, and Kenneth R. O'Brien, Deputy Attys. Gen., for plaintiff and respondent.

FRIEDMAN, Associate Justice.

Defendant went to trial on charges of second degree--murder of Devone Lee McMurray (a child of 13 months) and of abusing the child under circumstances likely to produce great bodily harm or death. (Pen.Code, § 273a, subd. (1).) The jury returned a guilty verdict on the latter charge but deadlocked on the first. A mistrial was declared as to the first charge. Defendant appeals from the judgment.

In brief summary, the prosecution evidence showed that defendant lived with the child's mother and was frequently left alone with the child; on various occasions in September, October and November 1975, the child suffered scratches, scalds, burns and bruises which defendant attributed to accident or carelessness. On November 10, 1975, the child was brought to a hospital exhibiting head bruises and suffering from three separate subdural hematomas, one of which proved fatal. The attending doctor found evidence of other wounds and of several burns. He and another doctor discounted accident as an explanation for the injuries. Both doctors testified to 'a reasonable medical certainty' that the child was a victim of the battered child syndrome.

The infomation charged that defendant had inflicted or caused the child to suffer great bodily harm between July 1, 1975 and November 10, 1975.

A prime issue on appeal is whether the trial court should have given a Sua sponte jury instruction declaring that a finding of guilt would require the jurors to agree that defendant committed the same act or acts. (See, e.g., CALJIC No. 17.01.)

'If a defendant has been prosecuted for violation of a statute under which any one of several different acts could constiture the offense, the jury must be told that a verdict of guilty must be supported by a unanimous finding that one of the acts was committed.' (People v. Heideman, 58 Cal.App.3d 321, 333, 130 Cal.Rptr. 349, 355.) Other statutes, in contrast, may be violated by a continuous course of conduct or by a series of acts over a period of time. Thus, in a prosecution for contributing to the delinquency of a minor, the prosecutor is not required to make an election as to any particular date or act; nor is the court required to call upon the jury for unanimity as to any particular act or acts. (People v. Lowell, 77 Cal.App.2d 341, 345--347, 175 P.2d 846; see also, People v. Schoonder-wood, 72 Cal.App.2d 125, 127, 164 P.2d 69; cf. People v. Dutra, 75 Cal.App.2d 311, 321--322, 171 P.2d 41.)

Penal Code section 273a is a statute of the latter variety. It punishes the acts generally classed as child abuse. (People v. Wright, 60 Cal.App.3d 6, 10, 131 Cal.Rptr. 311.) A medical diagnosis of 'battered child syndrome' is admissible as evidence in child abuse prosecutions; the syndrome denotes repeated, sometimes serious, injuries inflicted over a span of time; their nature, severity and number are such as to preclude an inference of accident. (People v. Jackson, 18 Cal.App.3d 504, 507, 95 Cal.Rptr. 919; see also, Landeros v. Flood, 17 Cal.3d 399, 408--409, 131 Cal.Rptr. 69, 551 P.2d 389.) Although the child abuse statute may be violated by a single act (see e.g., Lansdown v. Superior Court, 10 Cal.App.3d 604, 89 Cal.Rptr. 154), more commonly it covers repetitive or continuous conduct. (See e.g., People v. Wright, supra, 60 Cal.App.3d 6, 131 Cal.Rptr. 311; People v. Atkins, 53 Cal.App.3d 348, 125 Cal.Rptr. 855; People v. Beaugez, 232 Cal.App.2d 650, 43...