People v. Pointer

Citation151 Cal.App.3d 1128,199 Cal.Rptr. 357
CourtCalifornia Court of Appeals Court of Appeals
Decision Date17 February 1984
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Ruby POINTER, Defendant and Appellant. A017295.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Thomas A. Brady, Linda Ludlow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Howard J. Berman, Berman & Glenn, San Francisco, for defendant and appellant.

KLINE, Presiding Justice.

Our principal inquiry in this case is whether a woman convicted of the felony of child endangerment (Pen.Code, § 273a, subd. (1)) and found to be in violation of a custody decree (§ 278.5) 1 may, as a condition of probation, be prohibited from conceiving a child. As a preliminary matter, we must also determine whether section 273a, subdivision (1), defines a specific intent crime.


Appellant, Ruby Pointer, has at all material times been the devoted adherent of a rigorously disciplined macrobiotic diet. 2 She is also the mother of two children, Jamal and Barron, who at the time of trial were, respectively, two and four years of age. Appellant imposed an elaborate macrobiotic regime on both children despite the objections of Barron's father and despite the repeated advice of her physician, Dr. Gilbert Carter, that such diet was inappropriate and unhealthy for young children. Dr. Carter additionally advised appellant that breastfeeding Jamal while she was herself on a macrobiotic diet was hazardous for the infant.

In October 1980, more than a year prior to the trial, Barron's father sought the assistance of Children's Protective Services, a county agency that investigates complaints of child abuse and neglect. Donald Allegri, a social worker with the agency thereupon met with appellant and, after seeing the children, strongly urged her to immediately consult Dr. Loretta Rao, a pediatrician. Appellant brought Barron to Dr. Rao for examination, but not Jamal. Upon learning that Jamal had not been examined by Dr. Rao, Allegri phoned appellant's regular physician, Dr. Carter, and expressed his deep concern over Jamal's condition.

On November 8, 1980, Dr. Carter spent nearly two hours with appellant and both children. He was shocked when he observed Jamal and stated "God, Ruby, God, how could you do this? How could you not take care of your baby?" Dr. Carter reiterated the dangers of breastfeeding Jamal while she was on a macrobiotic diet, importuned her to modify her own diet and recommended increased calories and protein for the child. Dr. Carter also urged her to consult Dr. Rao, who, because she was herself a vegetarian, he thought might be able to more strongly influence appellant. Appellant disregarded Dr. Carter's advice and at this time did not consult Dr. Rao.

Two days later Dr. Carter again saw appellant and Jamal and observed that the child remained malnourished and significantly underdeveloped. He again pressed appellant to visit Dr. Rao and she again declined to do so. During a telephone conversation nearly two weeks later, Dr. Carter repeated his warning of the severity of Jamal's condition and urged appellant once more to visit Dr. Rao or, in the alternative, bring the child to a hospital emergency room. Appellant vaguely indicated that she would "take care of things."

When on November 25th appellant finally brought Jamal to Dr. Rao she was informed that the child, who was emaciated, semicomatose, and in a state of shock, was dying and in need of immediate hospitalization. Appellant demurred, telling Dr. Rao that she wanted to consult others and would return later. Appellant resisted hospitalization because she felt Jamal might intravenously be fed "preservatives" and suffer a rash. Dr. Rao thereupon called the police, who arrived in five minutes and ordered Jamal hospitalized at once. As a result of emergency procedures the child's life was saved.

During Jamal's hospitalization, appellant surreptitiously brought him macrobiotic food despite warnings not to do so and continued to breastfeed him even after being told that her milk contained high levels of sodium that endangered the child.

Upon his discharge from the hospital, Jamal was placed in a foster home. While ostensibly visiting him there, appellant abducted the child and fled to Puerto Rico with him and her other son. An agent of the Federal Bureau of Investigation located appellant and the children in a housing project in Rio Piedras, Puerto Rico, on September 29, 1981, and arrested her at that time. The agent testified at trial that appellant's living quarters were rather squalid and that the only foodstuffs he observed were bags of beans, some millet, a few other grains and noodles. After appellant waived her Miranda rights, she admitted to the agent that she had abducted Jamal from the foster home. She did so, she stated, because the woman who managed the home fed Jamal eggs and sugar and did not respect his dietary habits. She said Jamal was "getting fat" and that she did not like it.

When the children returned to California it was determined that as a result of diet and maternal neglect Barron was seriously underdeveloped and Jamal had suffered severe growth retardation and permanent neurological damage.

On the facts just briefly described, appellant was found guilty by a jury of violation of Penal Code sections 273a and 278.5. She was thereafter sentenced to five years probation on the conditions that she serve one year in county jail; participate in an appropriate counseling program; not be informed of the permanent whereabouts of Jamal (who was placed in foster care) and have no unsupervised visits with him; have no custody of any children, including her own, without prior court approval; and that she not conceive during the probationary period. Appellant challenges this last condition as an unconstitutional restriction of her fundamental rights to privacy and to procreate.


Before addressing the propriety of the challenged condition we turn first to the threshold question whether the trial court correctly refused appellant's requested instruction that section 273a, subdivision (1), requires the specific intent to injure the child. 3

After reading the pertinent part of section 273a, subdivision (1), to the jury, the court instructed the jury on the elements required to commit the crime. 4

The court then proceeded to define the term "willful" as follows: "As used in these instructions, the word 'willful' is construed to mean 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. [p] It 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 the child."

Appellant's contention that it was error not to instruct the jury that a violation of the statute requires the specific intent to inflict the harm defined in the statute has no support in law. It is well established that the term "willful" as utilized in section 273a, subdivision (1), does not require intent to injure the child but " '... 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.' " (People v. Atkins (1975) 53 Cal.App.3d 348, 358, 125 Cal.Rptr. 855, quoting Penal Code section 7, subdivision (1); see also, People v. Peabody (1975) 46 Cal.App.3d 43, 46, 119 Cal.Rptr. 780; and People v. Beaugez (1965) 232 Cal.App.2d 650, 657, 43 Cal.Rptr. 28.)

As set forth in Peabody, supra, the standard of conduct condemned by the statute is that of criminal negligence, which means "that the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with the proper regard for human life. [Citations.]" (46 Cal.App.3d at pp. 48-49, 119 Cal.Rptr. 780.) This construction of the statute was recently reaffirmed in People v. Northrop (1982) 132 Cal.App.3d 1027, 182 Cal.Rptr. 197, in which, in the course of approving an instruction similar to that challenged here, the court recognized that "[I]t would have been error for the trial court to apply the specific intent instruction to the child abuse count [§ 273a, subd. (1) ], since felony child abuse is a general intent crime. [Citations.]" (Id., at p. 1037, 182 Cal.Rptr. 197.)

In re Maria R. (1976) 64 Cal.App.3d 731, 135 Cal.Rptr. 2, and People v. Hernandez (1980) 111 Cal.App.3d 888, 168 Cal.Rptr. 898, upon which appellant relies, are not inconsistent with the foregoing cases. Maria R. was a juvenile proceeding involving a 16-year-old minor who was the mother of two children. The petition filed in the case alleged that Maria was within section 602 of the Welfare and Institutions Code in that she had abused one of her children in violation of subdivision (1) of section 273a. Since the matter was a juvenile proceeding, the propriety of jury instructions was not at issue. The only question presented on appeal was whether there was substantial evidence to support the order sustaining the petition. In holding that the evidence was insufficient, the Court of Appeal stated that "[a]t most, it shows only that Maria was ignorant of the potentially adverse effects of administering aspirin to a small child. That is not the 'purposeful' conduct or the conduct 'with knowledge of consequences' of which [People v.] Beaugez [supra 232 Cal.App.2d 650, 43 Cal.Rptr. 28] speaks." (Id., 64 Cal.App.3d at p. 735, 135 Cal.Rptr. 2.) In short, the court in Maria R. distinguished the facts in that case from those in Beaugez and People v....

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