People v. Rodriguez

• Decision Date: 16 November 1960
• Docket Number: Cr. 7222
• Citation: 8 Cal.Rptr. 863,186 Cal.App.2d 433
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Isabel L. RODRIGUEZ, Defendant and Appellant.

Page 863

8 Cal.Rptr. 863

186 Cal.App.2d 433

PEOPLE of the State of California, Plaintiff and Respondent, v. Isabel L. RODRIGUEZ, Defendant and Appellant.

Cr. 7222.

District Court of Appeal, Second District, Division 3, California.

Nov. 16, 1960.

Hearing Denied Jan. 10, 1961.

Ellery E. Cuff, Public Defender of Los Angeles County, and Richard S. Buckley and James L. McCormick, Deputy Public Defenders, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was accused of manslaughter in that on November 8, 1959 she did wilfully, unlawfully, feloniously, and without malice kill Carlos Quinones. In a nonjury trial she was found guilty of involuntary manslaughter. A new trial was denied. She appeals from the judgment and the order denying a new trial.

In November 1959 defendant was living with her four children in a single-family residence at 130 South Clarence Street, Los Angeles. The oldest child was 6 years of age. Carlos Quinones was the youngest, either 2 or 3 years of age.

Olive Faison lived across the street from defendant. About 10:45 p. m. on November 8, 1959 Miss Faison heard some children calling, 'Mommy, mommy.' For about 15 or 20 minutes she did not 'pay too much attention.' She noticed the cries became more shrill. She went to the front window and saw smoke coming from defendant's house. She 'ran across the street and commenced to knock the door in and started pulling the children out.' There was a screen door on the outside and a wooden door inside the screen door. The screen door was padlocked on the outside. The other door was open. She broke the screen door and with the help of neighbors pulled three of the children out of the house. She tried to get into the house through the front door but could not because of the flames. A neighbor entered through the back door but could not go far because of the flames. Miss Faison took the three children to her apartment and shortly thereafter returned to the scene of the fire. She remained 'until after the little boy was brought out and revived and sent to the hospital.' Miss Faison did not see defendant around the house or the neighborhood at the time of the fire.

Firemen arrived at the scene some time after 10 p. m. The front door was open; there was no obstruction. Fireman Hansen went inside and found a boby boy in the back bedroom near the bed. The fire was about 3 feet away from the boy. Hansen took the boy out of the house. 'He appeared to be dead at the time.' The child was Carlos Quinones.

Around 4 or 4:30 p. m. on November 8, 1959 defendant was in 'Johnny's Place.' She was at the bar drinking 'coke.' She stayed about an hour. As John Powers, one of the bartenders, was closing the place about 2:30 a. m. on the morning of November 9, he saw defendant outside the building. He had not seen her inside before that time.

Maria Lucero, defendant's sister, went to defendant's home about 12 p. m. on November 8, 1959. She went looking for defendant. She found her about 2 or 2:30 a. m. in the same block as 'Johnny's Place.' Defendant was nervous and frightened, said she knew about the fire and that she went over to tell Johnny Powers about it. Defendant had not been drinking.

Carlos Quinones died from 'thermal burns, second and third degree involving 50 to 60 per cent of the body surface.' Defendant did not testify.

_ It is first contended the evidence fails to establish a corpus delicti of the offense charged. In a homicide case the corpus delicti consists of two elements: the death of a human being, and the existence of a criminal agency as the cause. People v. Amaya, 40 Cal.2d 70, 75, 251 P.2d 324. The argument is that there was no proof of the existence of a criminal agency as the cause of the death of Carlos.

"Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: * * * 2. Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection * * *." Pen.Code, § 192. "In every crime or public offense there must exist a union, or joint operation of act and intent, or cirminal negligence." Pen.Code, § 20. Section 20 of the Penal Code makes the union of act and wrongful intent or criminal neglgence an invariable element of every crime unless it is excluded expressly or by necessary implication. People v. Stuart, 47 Cal.2d 167, 171, 302 P.2d 5, 55 A.L.R.2d 705. Section 26 of the Penal Code lists, among the persons incapable of committing crimes, "[p]ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." Thus the question is: Was there any evidence of criminal intent or criminal negligence?

The attorney general contends that even if defendant had no criminal intent and was not criminally negligent, she violated section 273a of the Penal Code and therefore committed an unlawful act within the meaning of section 192 of the Penal Code.

Penal Code, § 273a, reads:

"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 guilty of a misdemeanor."

"It does not follow, however, that such acts, committed without criminal intent or criminal negligence, are unlawful acts within the meaning of section 192 of the Penal Code, for it is settled that this section is governed by section 20 of the Penal Code. Thus, in People v. Penny, 44 Cal.2d 861, 877-880, 285 P.2d 926, 936, we held that 'there was nothing to show that the Legislature intended to except section 192 of the Penal Code from the operation of section 20 of the same code' and that the phrase 'without due caution and circumspection' in section 192 was therefore the equivalent of criminal negligence. Since section 20 also applies to the phrase 'unlawful act,' the act in question must be committed with criminal intent or criminal negligence to be an unlawful act within the meaning of section 192. By virtue of its application to both phrases, section 20 precludes the incongruity of imposing on the morally innocent the same penalty, Pen.Code, § 193 appropriate only for the culpable. Words such as 'unlawful act, not amounting to felony' have been included in most definitions of manslaughter since the time of Blackstone [citations] and even since the time of Lord Hale, 'unlawful act' as it pertains to manslaughter has been interpreted as meaning an act that aside from its unlawfulness was of such a dangerous nature as to justify a conviction of manslaughter if done intentionally or without due caution. [Citations.] To be an unlawful act within the meaning of section 192, therefore, the act in question must be dangerous to human life or safety and meet the conditions of section 20." People v. Stuart, 47 Cal.2d 167, 173, 302 P.2d 5, 9, 55 A.L.R.2d 705.

It appears from the record that guilt was predicated on the alleged 'commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' Pen.Code, § 192.

In People v. Penny, 44 Cal.2d 861, 285 P.2d 926, the defendant was convicted of involuntary manslaughter. While engaged in the practice of 'face rejuvenation' she applied a formula containing phenol to the skin. Death was caused by phenol poisoning. The trial court charged the jury that ordinary negligence was sufficient to constitute lack of 'due caution and circumspection' under Penal Code, § 192. The court said (44 Cal.2d at page 869, 285 P.2d at page 931): 'It has been held that without 'due caution and circumspection' is the equivalent of 'criminal negligence." After reviewing numerous California authorities, the court continued (44 Cal.2d at page 876, 285 P.2d at page 935):

"So far as the latest cases are concerned, it appears that mere negligence is sufficient to constitute a lack of due caution and circumspection under the manslaughter statute. Pen.Code, § 192, subd. 2. This does not appear to be a correct rule. Something more, in our opinion, is needed to constitute the criminal negligence required for a conviction of manslaughter."

"[44 Cal.2d at page 879, 285 P.2d at page 937.] The statute, Pen.Code, § 192, subd. 2, provides (in part) that in order to convict a person of involuntary manslaughter, there shall be an unlawful killing of a human being in the commission of a lawful act which might produce death without due caution and circumspection. The words lack of 'due caution and circumspection' have been heretofore held to be the equivalent of 'criminal negligence', Pen.Code, § 20. The general rule is set forth in 26 Am.Jur. Homicide, § 210, p. 299, as follows: 'The authorities are agreed, in the absence of statutory regulations denouncing certain acts as criminal, that in order to impose criminal liability for a homicide caused by negligence, there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or in other words, a disregard of human life or an indifference to consequences.' The article continues thus: 'Aside from the facts that a more culpable degree of...