Supreme Court of California Justia
Docket No. S189786

People v. Wyatt

Filed 11/5/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S189786
v.
Ct.App. 1/2 A114612
REGINALD WYATT,
Alameda County
Defendant and Appellant.
Super. Ct. No. C147107

While in defendant‟s care, defendant‟s young son died of shock and
hemorrhage due to blunt force trauma. A jury convicted defendant of involuntary
manslaughter (Pen. Code,1 § 192, subd. (b)) and assault on a child causing death
(§ 273ab). As relevant here, the Court of Appeal reversed the section 273ab
conviction upon finding the trial court erroneously failed to instruct the jury, sua
sponte, on simple assault as a lesser included offense. We conclude there was no
error. We therefore reverse the judgment of the Court of Appeal and remand with
directions to reinstate the conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2003, defendant Reginald Wyatt was living with Tiffany Blake and
their infant daughter, Valerie. Defendant also had a 14-month-old son, Reginald
Wyatt, Jr. (Reginald), from a previous relationship. On the morning of May 18,

1
All further statutory references are to this code unless otherwise indicated.
1


2003, Reginald stopped breathing while in defendant‟s care. He was rushed to the
hospital, but could not be revived. Although the treating doctor saw no signs of
significant injury on the body, the autopsy disclosed that Reginald died of shock
and hemorrhage due to blunt force trauma to the chest and abdomen.
An information was filed charging defendant with one count of murder
(§ 187, subd. (a)) and one count of assault on a child causing death (§ 273ab).2
As explained in detail, post, the evidence at trial included medical evidence
concerning Reginald‟s injuries, defendant‟s tape-recorded statements and trial
testimony, and testimony from Tiffany Blake and Reginald‟s mother. After the
defense rested, the court granted a judgment of acquittal as to the murder count.
(§ 1118.1.) The jury convicted defendant of involuntary manslaughter (§ 192,
subd. (b)) and child assault homicide (§ 273ab).
In 2008, the Court of Appeal reversed the section 273ab conviction.
Because the evidence did not show that defendant had “ „actual knowledge‟ he
was „wrestling far too hard with his young son,‟ ” the court deemed the evidence
insufficient to prove the requisite mens rea for the crime. (Wyatt I, supra,
48 Cal.4th at p. 779.) On review of the matter, we explained that under People v.
Williams (2001) 26 Cal.4th 779 (Williams), “a defendant may commit an assault
without realizing he is harming the victim, but the prosecution must prove the
defendant was aware of facts that would lead a reasonable person to realize that a
battery would directly, naturally, and probably result from the defendant‟s

2
The assault provision now appears in section 273ab, subdivision (a),
without substantive change. (Compare Stats. 1996, ch. 460, § 2, p. 2814 with
Stats. 2010, ch. 300, § 1.) We refer to the operative statute simply as section
273ab. In People v. Wyatt (2010) 48 Cal.4th 776 (Wyatt I), we noted the offense
defined by section 273ab was sometimes referred to as “child abuse homicide.”
(Wyatt I, at p. 779.) Upon reflection, we agree with defendant that “child assault
homicide” is a more accurate term for the offense.
2


conduct.” (Wyatt I, at p. 779.) Applying the Williams standard, we found
substantial evidence establishing “that defendant knew he was striking his young
son with his fist, forearm, knee, and elbow, and that he used an amount of force a
reasonable person would realize was likely to result in great bodily injury.” (Ibid.)
Accordingly, we reversed the judgment of the Court of Appeal and remanded for
further proceedings.
The Court of Appeal again reversed the section 273ab conviction, this time
concluding the trial court should have instructed the jury, sua sponte, on simple
assault as a lesser included offense.
We granted the People‟s petition for review.
DISCUSSION
The Court of Appeal relied on People v. Basuta (2001) 94 Cal.App.4th 370
for the proposition that simple assault (§ 240) is a lesser included offense of child
assault homicide (§ 273ab). The People do not contest this holding, so we proceed
to the inquiry at hand. Given the evidence at trial, did the trial court prejudicially
err in failing to instruct the jury sua sponte on simple assault?
The legal principles governing our analysis are settled. “In criminal cases,
even absent a request, a trial court must instruct on the general principles of law
relevant to the issues the evidence raises. [Citation.] „ “That obligation has been
held to include giving instructions on lesser included offenses when the evidence
raises a question as to whether all of the elements of the charged offense were
present [citation], but not when there is no evidence that the offense was less than
that charged. [Citations.]” ‟ [Citation.] „[T]he existence of “any evidence, no
matter how weak” will not justify instructions on a lesser included offense, but
such instructions are required whenever evidence that the defendant is guilty only
of the lesser offense is “substantial enough to merit consideration” by the jury.
[Citations.]‟ ” (People v. Taylor (2010) 48 Cal.4th 574, 623; see People v.
3
Thomas (2012) 53 Cal.4th 771, 813; People v. Huggins (2006) 38 Cal.4th 175,
215.) In this regard, the testimony of a single witness, including that of a
defendant, may suffice to require lesser included offense instructions. (People v.
Lewis (2001) 25 Cal.4th 610, 646.) Courts must assess sufficiency of the evidence
without evaluating the credibility of witnesses, for that is a task reserved for the
jury. (People v. Breverman (1998) 19 Cal.4th 142, 162.) The failure to instruct on
a lesser included offense in a noncapital case does not require reversal “unless an
examination of the entire record establishes a reasonable probability that the error
affected the outcome.” (Breverman, at p. 165; see Thomas, at p. 814.)
We begin with a summary of the prosecution‟s evidence.3 At the time of
the crimes, Reginald was 14 months old, stood 31 inches tall, and weighed 26
pounds. (Wyatt I, supra, 48 Cal.4th at pp. 782, 783.) After the autopsy, defendant
waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and gave the
following statements to investigators in a tape-recorded interview. On the
morning of May 18, 2003, defendant got up and started wrestling and playing with
Reginald, who was staying with him and his girlfriend Tiffany Blake for the
weekend. Defendant picked Reginald up and threw him on the bed, and
“chopped” his back with both hands. He held Reginald up and pressed the boy‟s
stomach to his head, and then turned and flipped Reginald a distance of about four
feet onto the bed. (Wyatt I, at p. 782.)
Defendant said that at one point, he accidentally fell on top of Reginald
while performing a move he called “comin‟ off the top rope.” Defendant
explained that Reginald rolled unexpectedly just as defendant was about to jump

3
We draw heavily from the facts as recited in Wyatt I, supra, 48 Cal.4th at
pages 782-784, and incorporate additional facts from the record where relevant to
the analysis.
4


on the bed. When defendant landed, his hip came down on Reginald, along with
most or all of defendant‟s body weight of 170 pounds. Reginald grunted as if the
wind had been knocked out of him, but he did not cry and continued to smile and
seemed fine. Blake later told defendant he was playing too rough with Reginald
and could hurt him, so defendant stopped. (Wyatt I, supra, 48 Cal.4th at p. 782.)
After Blake left for work, defendant resumed wrestling with Reginald for
another 20 or 30 minutes. During this period, defendant might have hit his son
harder because Blake was not there to interfere. Defendant “body slammed”
Reginald about four times, and used his fists to hit Reginald in the chest about 10
or 11 times. He did an “atomic elbow” to Reginald‟s head, hit him in the upper
chest with his forearm about three times, and then hit him on the back. In
addition, defendant held Reginald up by his neck, squeezed him between his legs,
and twice did a “knee drop,” in which he hit Reginald in the back with his knee.
He also did “pretend” head butts and boxed with Reginald, and repeatedly did a
“suplex,” which involved grabbing Reginald and flipping him over defendant‟s
body onto the bed. Defendant said he wanted his son to be more “active” and was
trying to “toughen him up” because a kid cannot be “soft” to grow up in Oakland.
(Wyatt I, supra, 48 Cal.4th at p. 783.)
During a second tape-recorded interview that same evening, the
investigators asked defendant what he was feeling when wrestling with Reginald.
Defendant said he was not feeling like himself or thinking about being rough, then
clarified he was “stuck” on play-fighting with his son: “Like I just had a one-track
mind. I was just stuck on toughening him up, playin‟ with Reggie, beatin‟ up
Reggie . . . that‟s all that was stuck on there.” He further stated, “[M]y mind
musta went blank, though, for me to really . . . hit him hard enough . . . to hurt
him, and I not notice it. I wasn‟t payin‟ attention, and I wasn‟t thinkin‟.” In
defendant‟s words, “I was hittin‟ him pretty hard” and “I wasn‟t doin‟ nothin‟ to
5
not hit him no harder.” As for why he did not heed Blake‟s warning about hurting
Reginald, defendant admitted he was “[h]ard-headed” and “[s]tubborn” and
“[d]idn‟t want a woman to be tellin‟ me how to raise my son.” Although he had
play-wrestled with Reginald before, this was the first time he “lost control.”
(Wyatt I, supra, 48 Cal.4th at p. 783.)
Prosecution witness Dr. David Levin testified his external examination
disclosed an abrasion on Reginald‟s chin and two abrasions on the neck. There
was a laceration of the frenulum of the upper lip and a contusion on the chest.
During his internal examination, Dr. Levin found an internal contusion under the
scalp at the forehead, and bleeding on the surface of the heart, on the tissue behind
the heart, and at the hilus of the left lung. There were four lacerations to the liver,
which caused internal bleeding of 200 milliliters of blood into the abdominal
cavity. Dr. Levin also found hemorrhaging behind the abdominal cavity and in the
mesentery of the small and large intestines, as well as acute fractures of the fifth
and sixth ribs on both the right and left sides of the back of the body. He
additionally observed mild cerebral swelling. (Wyatt I, supra, 48 Cal.4th at
pp. 783-784.)
Dr. Levin determined that Reginald died of shock and hemorrhage due to
blunt force trauma to the chest and abdomen. The injuries were consistent with
multiple instances of blunt force trauma to the back, abdomen, chest, and head,
although some of the injuries could have been caused if a person who weighed 170
pounds jumped up and landed with his hip onto the child‟s midsection. The
infliction of trauma would not necessarily result in external bruising, especially in
softer areas like the abdomen. The contusion on the chest could have been caused
by someone attempting to administer CPR, but it was highly unlikely CPR caused
the fractured ribs in the back of the body. (Wyatt I, supra, 48 Cal.4th at p. 784.)
6
Dr. James Crawford testified as a pediatric expert in medical evaluations of
child abuse. According to Dr. Crawford, Reginald‟s injuries were “at the end of
the bell curve,” meaning they were at a level uncommon for a one-year-old child.
The types of injuries Reginald suffered, including the four lacerations to the liver
and the multiple sites of internal bleeding, “are seen only in the most serious
events,” such as when children are in car crashes or hit by motor vehicles. The
likelihood that Reginald‟s ribs were broken during CPR was “extraordinarily
small.” Although the fractures could conceivably have been caused by blunt force
trauma to the child‟s back, it would have to have been “something that would have
been quite violent, quite out of the ordinary,” given how uncommon rib fractures
are in children. Unless the child were unconscious or had a profound neurological
condition, he would be expected to have reacted to the types of injuries shown
here by crying and clearly demonstrating distress. Dr. Crawford found it
unbelievable that a child with such injuries would be laughing and smiling.
(Wyatt I, supra, 48 Cal.4th at p. 784.)
In Dr. Crawford‟s opinion, there had to have been “at least multiple, and
potentially many impacts” for the identified injuries to have resulted. Although it
was remotely possible that one extremely violent lateral compression could have
caused all of the significant injuries, it was more likely the injuries were caused by
more than one blow. If all the different injuries were caused by a single event, it
would have to have been “an extraordinarily violent act.” (Wyatt I, supra,
48 Cal.4th at p. 784.)
In his defense, defendant took the stand and denied performing any real
wrestling moves on Reginald. He claimed he did not strike his son hard but used
only “make-believe wrestling moves,” such as “body-slam,” “off-the-top-rope,”
“head butt,” “suplex,” and an “atomic elbow” to the head. Defendant testified that
at one point, he intended to jump on the bed next to Reginald to make the bed
7
shake so Reginald would laugh. When defendant jumped up and was in the air,
Reginald rolled underneath him. Defendant ended up falling on his son, with his
hip hitting Reginald in the back. Defendant said that, after he landed on Reginald
by accident, it appeared his son had the wind knocked out of him. Reginald did
not cry and assumed normal breathing after a short while. Defendant testified he
stopped playing with Reginald and put him down on his sleeping pallet with some
milk. Defendant drifted off to sleep at about 10:00 a.m.
When defendant awoke, Reginald was not responsive but breathing faintly.
He hit Reginald on the back and attempted CPR on him, but Reginald did not
respond. Defendant tried calling his stepmother and Reginald‟s mother, but
neither one answered. He then dialed 911, but could not get through. When he
performed CPR on Reginald again, “some green stuff” came out of Reginald‟s
nose. Defendant panicked and picked up his young daughter and Reginald to go
to a neighbor‟s apartment. At this point, defendant tripped and dropped both
children, with Reginald‟s head hitting the floor. The neighbor dialed 911.
Defendant did not initially tell police about the bed-jumping incident because he
did not connect it with Reginald‟s condition.
Defendant then explained his incriminating statements to the investigators.
Defendant told the investigators he was wrestling with Reginald, presuming they
realized that he meant he was “play wrestling.” When the investigators asked how
Reginald could have suffered such extensive injuries in a single accident,
defendant began “second-guessing” himself and entertained the possibility that he
did not remember the events correctly and that he hit Reginald harder than he
believed. Defendant was grief stricken, and he felt shame and guilt about what
had happened. Defendant‟s mind was spinning, and he “just kind of went along”
with the investigators‟ hypothesis that he blacked out and struck Reginald too
hard, “because they knew, you know, basically what happened.”
8
Defense pathologist Dr. Paul Herrmann testified that Reginald‟s liver and
rib injuries could have resulted from a single sharp blow to the back, such as if a
170-pound man had fallen on him, but he acknowledged that would be less likely
if Reginald were on a bed instead of on the floor. Dr. Hermann also believed the
injuries to Reginald‟s chest and heart area were likely due to CPR administration,
and the cause of the tear to his frenulum was consistent with an endotracheal tube
being placed in his mouth with violent force. On cross-examination,
Dr. Herrmann testified that a child receiving severe injuries to the liver and ribs
might scream in pain or go immediately into shock and become still. Either way,
however, a caregiver would likely notice a difference in the child‟s behavior.
At the time of the crime, section 273ab provided in relevant part: “Any
person who, having the care or custody of a child who is under eight years of age,
assaults the child by means of force that to a reasonable person would be likely to
produce great bodily injury, resulting in the child‟s death, shall be punished by
imprisonment in the state prison for 25 years to life.” (See ante, fn. 2.) As Wyatt I
explained, the assault in this offense requires evidence that the defendant acted
“with awareness of facts that would lead a reasonable person to realize that great
bodily injury would directly, naturally, and probably result from his act.”
(Wyatt I, supra, 48 Cal.4th at p. 781; see Williams, supra, 26 Cal.4th at p. 788.)
Consistent with its meaning in analogous statutory contexts, “great bodily injury”
refers to “significant or substantial physical injury. It is an injury that is greater
than minor or moderate harm.” (CALCRIM No. 820 [listing elements of
§ 273ab]; see People v. Maciel (2003) 113 Cal.App.4th 679, 686; People v.
Albritton (1998) 67 Cal.App.4th 647, 658.) Because the defendant “need not
know or be subjectively aware that his act is capable of causing great bodily
injury,” the requisite mens rea may be established “even when the defendant
honestly believes his act is not likely to result in such injury.” (Wyatt I, at p. 781.)
9
Section 240 defines the crime of simple assault as “an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of
another.” Although assault does not require a specific intent to injure the victim,
the defendant must “actually know[] those facts sufficient to establish that his act
by its nature will probably and directly result in physical force being applied to
another.” (Williams, supra, 26 Cal.4th at p. 788.) No actual touching is
necessary, but the defendant must do an act likely to result in a touching, however
slight, of another in a harmful or offensive manner. (See People v. Cox (2000)
23 Cal.4th 665, 674.)
As indicated, the obligation to instruct on a lesser included offense does not
arise when there is no evidence that the offense was less than that charged.
(People v. Thomas, supra, 53 Cal.4th at p. 813; People v. Taylor, supra,
48 Cal.4th at p. 623.) Thus, the question is whether substantial evidence
supported a conclusion that defendant committed only simple assault and not child
assault homicide. The dispute here, reduced to its essence, concerns the measure
of the force applied by defendant.
Defendant testified he jumped onto the bed to make it shake, so as to make
Reginald laugh. Reginald unexpectedly rolled underneath defendant as he was in
the air, and defendant landed on Reginald. Apart from that, defendant denied
causing any harm to his son, and specifically denied striking Reginald hard or
using real wrestling moves on him. In support of defendant‟s case, Dr. Herrmann
offered expert testimony that the blunt force trauma causing Reginald‟s death
could have resulted from defendant‟s falling on Reginald. The Court of Appeal
found that the testimony of defendant and his expert, taken together, reflected
substantial evidence of a simple assault. We are not persuaded.
When compared, the prosecution‟s evidence (see ante, at pp. 4-7) and
defendant‟s evidence presented the jury with two scenarios on the charge of child
10
assault homicide. The prosecution‟s evidence supported its theory that defendant
was guilty of administering multiple blunt force blows to Reginald that caused
massive internal trauma and resulted in his death. Conversely, defendant offered
evidence to show he was not guilty of the charged crime because Reginald died as
a result of a single unfortunate accident when the child unforeseeably rolled or
turned as defendant jumped on the bed. After receiving instructions on child
assault homicide and accident, the jury returned a verdict finding defendant guilty.
The Court of Appeal, however, held the jury‟s rejection of the accident
theory did not foreclose the possibility that the jury might also have convicted
defendant of simple assault rather than child assault homicide. In the court‟s view,
the jury could have found, based on defendant‟s testimony he intended to jump on
the bed next to Reginald but not on him, that defendant did not commit an act
likely to produce great bodily injury, notwithstanding the serious injuries and
death that in fact resulted. We cannot agree.
The Court of Appeal‟s theory of simple assault is predicated on the
assumption that defendant willfully jumped on the bed in close proximity to
Reginald. Significantly, a jury could not convict defendant of assault under this
theory unless it found a reasonable person would realize this act would directly,
naturally, and probably result in physical force being applied against Reginald.
(Williams, supra, 26 Cal.4th at p. 790.) Here, the record established that
defendant weighed 170 pounds and that Reginald, who was 14 months old,
weighed only 26 pounds and stood 31 inches tall. According to defendant‟s
testimony, Reginald was lying on the bed when defendant purposefully jumped up
and onto the bed, intending to catch Reginald in the space between defendant‟s
body and elbow (i.e., under defendant‟s armpit) upon landing. Despite
defendant‟s claimed intent, given the obvious weight disparity between defendant
and Reginald, Reginald‟s size and tender age, and the way in which defendant
11
jumped up and over Reginald in order to land in such close proximity to him, no
reasonable person would conclude that defendant‟s act would probably result in
only minor injury to Reginald.4
Nonetheless, even if a reasonable person might believe that minor or
moderate harm was a possible outcome, the trial court is not required to “instruct
sua sponte on the panoply of all possible lesser included offenses.” (People v.
Huggins, supra, 38 Cal.4th at p. 215, italics added.) Such instructions are required
only when there is substantial evidence that, if the defendant is guilty at all, he is
guilty of the lesser offense, but not the greater. (Ibid.; People v. Thomas, supra,
53 Cal.4th at p. 813.) “ „ “ „Substantial evidence‟ in this context is „ “evidence
from which a jury composed of reasonable [persons] could . . . conclude[]” ‟ that
the lesser offense, but not the greater, was committed.” ‟ [Citation.]” (Huggins, at
p. 215.) Here, it would be speculative at best to construe the trial evidence in this
case as supporting a verdict of only simple assault. (See People v. Mendoza
(2000) 24 Cal.4th 130, 174.) Accordingly, the trial court had no sua sponte duty
to instruct on that lesser offense. (See People v. Berry (1976) 18 Cal.3d 509, 519
[court may refuse to instruct on simple assault where evidence makes clear that if
the defendant is guilty at all, he is guilty of the greater offense of assault by means
of force likely to produce great bodily injury]; People v. McCoy (1944) 25 Cal.2d
177, 187.)

4
Dr. Herrmann‟s testimony did not provide substantial evidence to the
contrary. The defense utilized Dr. Herrmann to address the medical possibility
that defendant‟s landing on Reginald caused the fatal injuries, and he opined it was
equally probable that the fatal injuries could have been caused “by a single blow,
as by multiple blows.” The doctor, however, offered no opinion that only minor
or moderate harm would probably result from the claimed assaultive act.
12


DISPOSITION
We reverse the judgment of the Court of Appeal and remand the matter
with directions to reinstate defendant‟s section 273ab conviction.

BAXTER, J.

WE CONCUR:
CANTIL-SAKAUYE, C.J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
13



CONCURRING OPINION BY KENNARD, J.
This case is before us the second time. To explain why I am writing
separately, some background information may be helpful.
In the earlier decision, People v. Wyatt (2010) 48 Cal.4th 776 (Wyatt I), the
issue involved the sufficiency of the evidence supporting defendant‟s conviction
for assault on a child resulting in death (hereafter also referred to as child abuse
homicide), a crime set forth in Penal Code section 273ab. That statute states:
“Any person, having the care or custody of a child who is under eight years of age,
who assaults the child by means of force that to a reasonable person would be
likely to produce great bodily injury, resulting in the child‟s death, shall be
punished by imprisonment . . . for 25 years to life.” (Id., subd. (a), italics added.)
In concluding that, contrary to the Court of Appeal‟s decision, the evidence
against defendant met Penal Code section 273ab‟s requirements, Wyatt I relied on
the definition of assault that a majority of this court had adopted in People v.
Williams (2001) 26 Cal.4th 779 (Williams). (Wyatt I, supra, at pp. 780-781.)
Williams described the mental state for assault as requiring only that the
defendant have “actual knowledge of the facts sufficient to establish that the
defendant‟s act by its nature will probably and directly result in injury to another”
(Williams, supra, 26 Cal.4th at p. 782), and as not requiring “a specific intent to
cause injury” (id. at p. 790). I dissented, expressing the view that assault is a
specific intent crime that requires proof of an intent to injure another. (Id. at
1



p. 791 (dis. opn. of Kennard, J.); see also People v. Colantuono (1994) 7 Cal.4th
206, 225-228 (conc. & dis. opn. of Kennard, J.); Wyatt I, supra, 48 Cal.4th at
p. 786 (conc. opn. of Kennard, J.).) Because the Williams majority‟s view of the
requisite mental state for assault carried the force of precedent, I concurred in
Wyatt I in upholding defendant‟s child abuse homicide conviction and in reversing
the Court of Appeal‟s judgment. (Wyatt I, supra, at p. 787.)
In the wake of the remand to the Court of Appeal in Wyatt I, that court
again reversed defendant‟s conviction, this time on the ground that the trial court
erred in not instructing the jury on its own initiative on simple assault, a lesser
offense necessarily included in the crime of assault on a child resulting in death.
The trial court‟s duty in this regard arises only if a reasonable jury could have
concluded that the lesser offense was committed, but not the greater offense. (See
maj. opn., ante, at pp. 3-4, 12.) As it did in Wyatt I, the majority here relies on the
Williams definition of simple assault (id. at p. 10), and it then holds that the
evidence would not have supported such a conclusion (id. at p. 11). Because, as I
observed earlier, the Williams majority‟s definition of assault is now the law, I
concur in today‟s majority opinion.
KENNARD, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wyatt
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 12/9/10 – 1st Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S189786
Date Filed: November 5, 2012
__________________________________________________________________________________

Court:

Superior
County: Alameda
Judge: Jon Rolefson

__________________________________________________________________________________

Counsel:

Waldemar D. Halka, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan,
Violet M. Lee and Alisha M. Carlile, Deputy Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Waldemar D. Halka
P.O. Box 99965
San Diego, CA 92169
(858) 273-8626

Alisha M. Carlile
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5896


Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. This case presents the following issue: Did the trial court prejudicially err by failing to instruct the jury on the court's own motion regarding simple assault (Pen. Code § 240) as a lesser included offense of assault on a child by means likely to produce great bodily injury, resulting in death (Pen. Code § 273ab, subd. (a))?

Opinion Information
Date:Docket Number:
Mon, 11/05/2012S189786

Opinion Authors
OpinionJustice Marvin R. Baxter
ConcurJustice Joyce L. Kennard

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Jun 11, 2013
Annotated by Peter Broderick

FACTS

In May 2003, defendant Reginald Wyatt was living with Tiffany Blake, their infant daughter, and defendant’s fourteen-month-old son from a previous relationship, Reginald Wyatt, Jr. (“Reginald”). On the morning of May 18, Reginald was in defendant’s care, and stopped breathing. He was rushed to the hospital, but could not be revived and was pronounced dead. The doctor treating Reginald saw no outward signs of significant injury on Reginald’s body; however the autopsy disclosed that Reginald died of shock and hemorrhage due to blunt force trauma to the chest and abdomen.

Upon questioning, defendant waived his Miranda rights and made statements to investigators in a tape-recorded interview. He indicated that he had been wrestling with Reginald that morning on the bed and Blake had told him he was playing too rough. After Blake left for work defendant began wrestling again and performed several moves on Reginald, including “body slams,” an “atomic elbow” to the head, a “knee drop,” and a “suplex.” The defendant said in a second recorded interview that he wanted to toughen up his son and said “I was hittin’ him pretty hard.” He also told investigators that he had “lost control” while wrestling.

PROCEDURAL HISTORY

This was the second time this case had been before the California Supreme Court.

After his arrest in 2003, the defendant was charged with murder (Pen. Code § 187(a)) and assault on a child causing death (Pen. Code § 273ab). At trial, the jury found the defendant guilty of involuntary manslaughter (Pen. Code § 192(b))—a lesser included offense of murder—and guilty of assault on a child causing death. On appeal in 2008, the Court of Appeal upheld defendant’s section 192(b) conviction, but overturned the section 273ab conviction on the grounds that the evidence was insufficient to prove the requisite mens rea for child assault homicide, because it failed to show that the defendant had actual knowledge he was wrestling too hard with his young son.

In 2010 the California Supreme Court granted review in this case for the first time to address two issues: (1) the showing required to establish mens rea for assault; and (2) the sufficiency of the evidence on that point. People v. Wyatt (2010) 48 Cal. 4th 776, 229 P.3d 156 (Wyatt I). The Supreme Court held that assault requires an intentional act and actual knowledge of facts that would lead a reasonable person to recognize that bodily injury would follow from the act; it does not require knowledge that the assault is likely to result in great bodily injury. It also held that, read in the light most favorable to the judgment by the Court of Appeal, the record contained sufficient evidence to support the child homicide conviction. Accordingly, it reversed the Court of Appeal’s judgment overturning defendant’s 273ab conviction, and remanded to the Court of Appeal for further proceedings.

On remand, the Court of Appeal overturned the section 273ab conviction once more, this time on the grounds that the trial court should have instructed the jury, sua sponte (of its own initiative), on simple assault (Pen. Code § 240) as a lesser included offense of assault on a child causing death.

The California Supreme Court again granted review.

ISSUES
Given the evidence presented at trial, did the trial court make a prejudicial error in failing to instruct the jury sua sponte on simple assault as a lesser included offense?

HOLDING

The trial court had no sua sponte duty to instruct on the lesser included offense, because there was not substantial evidence in the record that supported the conclusion that defendant had committed that offense.

ANALYSIS

(Majority) Baxter, J.

The Supreme Court presumed that simple assault, section 240, is a lesser included offense of assault on a child causing death, section 273ab, since the parties did not dispute it.

In a non-capital case such as this one, a trial court’s failure to instruct the jury on a lesser included offense does not require reversal of the conviction “unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” People v. Breverman (1998) 19 Cal.4th 142, 162. The existence of any evidence at all is not enough to require the jury instruction; such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. People v. Taylor (2010) 48 Cal.4th 574, 623. Conversely, if there is no evidence in the record that the offense was less than charged, the trial court has no obligation to instruct the jury on a lesser included offense. Id. The Supreme Court reviewed the trial record to determine whether substantial evidence supported a conclusion that defendant committed only simple assault and not child assault homicide.

At the trial, the prosecution introduced the statements made by the defendant to investigators about wrestling with his son. Additionally, a witness for the prosecution, Dr. Crawford, testified that the types of injuries doctors had observed on the victim’s body were the types of injuries “seen only in the most serious events” such as car crashes. He also testified that unless a child were unconscious or had a neurological condition, it would respond to such injuries by crying and demonstrating distress.

The defendant took the stand at trial and denied using any real wrestling moves on his son, but testified that he had accidentally landed with his hip on Reginald’s midsection when Reginald rolled over while defendant was performing a body slam. Defendant otherwise denied causing harm to his son, or striking him or using real wrestling moves on him. He said that Reginald did not show any signs of distress or serious discomfort before he stopped breathing. The defense contended that Reginald died from injuries sustained by the single, accidental blow.

The requisite mental state for simple assault under section 240 does not include a specific intent to injure the victim. However, the defendant must actually know that his act will probably and naturally result in direct physical force being applied to the victim. People v. Williams (2001) 26 Cal.4th 779, 788. Since under defendant’s own theory of the victim’s death, the defendant did not know his act would result in physical force being applied to the victim, the Supreme Court found there was not substantial evidence that the defendant had met the requisite mental state for simple assault under section 240.

The Supreme Court concluded that construing the evidence in the trial record to support a verdict of only simple assault would be “speculative at best.” It therefore held that the trial court had no sua sponte duty to instruct the jury on simple assault.

(Concurrence) Kennard, J.

Justice Kennard wrote separately to note that he had dissented in People v. Williams, in which the Court articulated the mental state of a defendant required by simple assault. See People v. Williams at 791 (dis. opn. of Kennard, J.). In Justice Kennard’s view, assault is a specific intent crime that requires proof of an intent to injure another. However, the Williams majority determined that the defendant’s mental state for assault required only that the defendant have actual knowledge that his act “by its nature will probably and directly result in an injury to another.” Id. at 790. Since the Williams majority’s view of the requisite state of mind for simple assault carried the force of law, Justice Kennard agreed with the Court’s holding in this case.

DISPOSITION

The judgment of the Court of Appeal was reversed and remanded with directions to reinstate the defendant’s 273ab conviction.

TAGS
criminal law, assault on a child causing death, child abuse, child abuse homicide, Pen. Code § 273ab, evidence, lesser included offenses, jury instruction, sua sponte,

Annotated by Peter Broderick