People v. Whitehurst

• Court: California Court of Appeals
• Writing for the Court: HOLLENHORST
• Citation: People v. Whitehurst, 12 Cal.Rptr.2d 33, 9 Cal.App.4th 1045 (Cal. App. 1992)
• Decision Date: 16 September 1992
• Docket Number: No. E009941,E009941
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Christopher WHITEHURST, Defendant and Appellant.

Page 33

12 Cal.Rptr.2d 33

9 Cal.App.4th 1045

PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Christopher WHITEHURST, Defendant and Appellant.

No. E009941.

Court of Appeal, Fourth District, Division 2, California.

Sept. 16, 1992.

[9 Cal.App.4th 1047] Patricia O'Neill Mitchell, Newport Beach, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Senior Asst. Atty. Gen., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Garrett Beaumont, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

Defendant was charged with two counts of inflicting corporal punishment on a child resulting in a traumatic condition (PEN.CODE, § 273D)¹, the first count involving Natalie P. and the second count Stephen W. After a jury trial, he was convicted of misdemeanor battery (§ 242) on count I and was acquitted on count II. Imposition of sentence was suspended and defendant was placed on three years' probation.

On appeal he raises three instructional errors: (1) the court erred in failing to instruct sua sponte on a parent's right to discipline a child; (2) the court erred in failing to instruct on the lesser included offense of misdemeanor child beating (§ 273a, subd. (2)); and (3) the court erred in instructing on prior bad acts. We find merit to the first contention and therefore reverse.

FACTS

On the morning of September 26, 1990, defendant and his wife, Donna Whitehurst, were sitting at the table in their home in Murrietta discussing custody arrangements regarding defendant's natural son, Stephen. Donna was planning on taking Stephen as well as Donna's five children from a prior marriage and leaving defendant.

While they were discussing custody of Stephen, Natalie, defendant's stepdaughter, age nine, came running into the house and approached the table to interrupt Donna and defendant for the fifth time. As Natalie approached, defendant backhanded her, hitting her in the rib cage on her left side. Natalie fell and cried.

Before Donna left her house with the children, she called her cousin, Dorothy McGill in Sacramento, and asked her if she could stay with her for a few days. Donna told Mrs. McGill that defendant had hit Natalie and had kicked Stephen. When Mrs. McGill agreed to Donna's visit, Donna took the children and drove to Sacramento.

Donna and the children arrived in Sacramento that evening. Mrs. McGill noticed that Natalie was guarding her ribs with her arms but Natalie refused to let Mrs. McGill look at her ribs. Mrs. McGill further noticed a bruise on Natalie's left arm between her shoulder and her elbow. Mrs. McGill also noticed that Stephen had a bruise on his stomach.

On September 27, 1990, Mrs. McGill called child protective services in Sacramento and reported the incident. On October 1, 1990, Donna returned to defendant with the children. Before leaving, Natalie told Mrs. McGill that she did not want to go back to Southern California because she was afraid defendant might hit her again.

Mrs. McGill also testified that defendant had called her twice in January of 1991 before the preliminary hearing, threatening to "come and get her" if she did not drop the charges.

On November 19, 1990, Detective Williams of the Riverside Sheriff's Department interviewed Donna in follow-up to the report of child abuse. Donna told him that defendant abused the children physically, verbally and emotionally. She told him that on September 26, defendant struck Natalie in the chest, knocking her out of a chair. Donna further told the detective that Natalie's ribs were sore after the blow.

On November 20, 1990, Donna again told the detective that defendant slapped, hit and kicked the children but this time claimed that it was their own fault.

At trial, Donna said that defendant hit Natalie because she was interrupting them. She denied that defendant knocked Natalie out of a chair. She said she had lied previously because she was mad at defendant. Donna also testified that she was standing next to defendant when he called Mrs. McGill in November and did not hear defendant threaten Mrs. McGill.

Defendant admitted backhanding Natalie but claimed that he did not hit her very hard. He said he hit her because she continued interrupting Donna and defendant although she had been told to stay outside. He denied kicking Stephen.

Riverside Child Protective Services worker, Ranee McNeill, saw no bruises on any of the children on November 20, 1990.

PARENT'S RIGHT TO DISCIPLINE

Defendant contends the trial court had a sua sponte duty to instruct the jury regarding a parent's right to discipline his child. We agree.

As respondent concedes, "[i]t is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Castillo [ (1970) ], 70 Cal.2d 264, 270-271, fn. 5 [74 Cal.Rptr. 385, 449 P.2d 449] ...; People v. Henderson [ (1963) ], 60 Cal.2d 482, 489-490 [35 Cal.Rptr. 77, 386 P.2d 677] ...; People v. Jackson [ (1963) ], 59 Cal.2d 375, 380 [29 Cal.Rptr. 505, 379 P.2d 937] ...; People v. Putnam [ (1942) ], 20 Cal.2d 885, 890 [129 P.2d 367] ...; People v. Warren [ (1940) ], 16 Cal.2d 103, 116-117 [104 P.2d 1024]....) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case. (People v. Wilson [ (1967) ], 66 Cal.2d 749, 759 [ (59 Cal.Rptr. 156, 427 P.2d 820) ] ...; People v. Wade [ (1959) ], 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116]....)" (People v. St. Martin (1970), 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390; People v. Sedeno (1974), 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds in People v. Flannel (1979), 25 Cal.3d 668, 684, fn. 12.) Respondent also concedes the court is further obligated to instruct on defenses if it appears the defendant is relying on the defense or if there is substantial evidence to support the defense and it is not inconsistent with defendant's theory of the case. (Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)

Respondent argues however that the court was not obligated to give instructions on the right to discipline because (1) "appellant's parental right to discipline his children was not necessary to the jury's understanding"; (2) the right is "self-evident"; and (3) "it did not appear that appellant was primarily relying on such a defense." We cannot agree with any of these positions.

Defendant's theory of the case as presented from not only his testimony but that of his wife and his stepdaughter as well was that he simply was disciplining Natalie for continuing to interrupt and that he did not hit her very hard. Respondent attempts to split the defense theory of the case into two separate defenses: first and primarily that Natalie did not suffer any traumatic condition, and second, that he was simply disciplining the child. We do not believe the issue of parental right to discipline can be separated in this fashion.

A parent has a right to reasonably discipline by punishing a child and may administer reasonable punishment without being liable for a battery. (Emery v. Emery (1955) 45 Cal.2d 421, 429, 289 P.2d 218; People v. Stewart (1961) 188 Cal.App.2d 88, 91, 10 Cal.Rptr. 217.) This includes the right to inflict reasonable corporal punishment. (People v. Curtiss (1931), 116 Cal.App.Supp. 771, 775, 300 P. 801.)

However, a parent who willfully inflicts unjustifiable punishment is not immune from either civil liability or criminal prosecution. (People v. Stewart, supra, 188 Cal.App.2d 88, 91, 10 Cal.Rptr. 217; People v. Curtiss, supra, 116 Cal.App.Supp. 771, 777, 300 P. 801.) As explained in Curtiss, corporal punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or when such punishment, although warranted, was excessive. (Id., at p. 780, 300 P. 801.) "[B]oth the reasonableness of, and the necessity for, the punishment is to be determined by a jury, under the circumstances of each case." (Id., at p. 777, 300 P. 801.)

Thus as these cases make clear, whether the corporal punishment falls within the parameters of a parent's right to discipline involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive. Reasonableness and necessity therefore are not two separate defenses but rather two aspects of the single issue of parental right to discipline by physical punishment. Thus we reject respondent's claim that the...