Parent Who Knowingly Fails To Take Reasonable Steps To Protect Child From Attack May Be Criminally Liable Under Aider and Abettor Theory

View Westlaw version with hypertext links

In People v. Rolon (2008) 160 C.A.4th 1206, 73 C.R.3d 358, defendant and L were the parents of a 1-year-old child. At various times during a 12-hour period beginning about 6:00 p.m., L, the father, immersed the child in a tub of water and unspecified chemicals, threw him against the wall, and punched him in the chest. A neighbor testified that, in the early morning hours, she heard a screaming child in defendant’s apartment and a series of thumps against the wall that lasted for three minutes. During this period, defendant slept several times, leaving the child in the father's care. At some point, the child stopped breathing. When both immersing him in cold water and cardiopulmonary resuscitation failed to revive him, he was wrapped in a blanket and placed in a crib. The next day, L purchased gasoline, which he used to burn the child’s body so as to remove identifying features. An autopsy revealed that the child had died from suffocation caused by blood pooling in his lungs, from a massive overdose of pseudoephedrine, and from 24 blunt force injuries. On the theory that defendant aided and abetted L’s killing by failing to perform her parental duty to protect the child, defendant was charged with various crimes, including second degree murder. Held, conviction affirmed.

(a) The primary issue in this case is whether the trial court correctly instructed the jury that a parent may be liable for aiding and abetting a crime and for second degree murder on an implied malice theory by intentionally failing to act to protect his or her child from harm. The instruction is proper. One of the elements of aider and abettor liability is conduct by the aider and abettor that in fact assists in the achievement of the crime. Where, as here, an individual's criminal liability is based on the failure to act, he or she must first be under an existing legal duty to take positive action. (160 C.A.4th 1212, citing People v. Heitzman (1994) 9 C.4th 189, 37 C.R.2d 236, 886 P.2d 1229, 1 Cal. Crim. Law (3d), Elements, §22.) People v. Swanson-Birabent (2003) 114 C.A.4th 733, 7 C.R.3d 744, 1 Cal. Crim. Law (3d), Introduction to Crimes, Supp., §79, in which the defendant was convicted of committing a lewd or lascivious act on a child when she stood by and said nothing while her boyfriend sexually fondled her daughter, held that the requisite duty to care and protect one’s minor child was established by P.C. 272(a)(2). (160 C.A.4th 1212.)

(b) Defendant argues that Swanson-Birabent was wrongly decided, because P.C. 272(a)(2) states only a limited parental duty, rather than one that applies generally. Defendant’s premise is correct, but her conclusion is wrong. By its terms, P.C. 272(a)(2) only creates misdemeanor liability for a parental failure to act that causes a child to come within the provisions of Welf.C. 300, 601, or 602. However, P.C. 272(a)(2) is not the exclusive source of the parental duty to protect. Parents are also under a common law duty, based on the special relationship between parent and child, to protect their children. Although Swanson-Birabent does not explicitly discuss common law parental liability, it nevertheless impliedly adopts this liability by quoting extensively from a North Carolina decision holding that the duty of parents to protect their children is inherent in their common law duty to provide for their safety. (160 C.A.4th 1214.)

(c) Defendant argues that, under Heitzman, the common law may inform the scope and nature of a statutory duty to act, but that decision does not permit criminal liability to flow from the common law, where no statute imposes liability. Defendant misreads Heitzman. That case does not say that the common law may only inform an existing statutory duty; rather, a criminal statute may embody a common law duty. “To recognize that a criminal statute may embody a common law duty to act . . . is not to impose criminal liability without a statute. The statute is still the source of liability; the common law only provides the rationale that failure to act can be equivalent to an affirmative act in some situations.” (160 C.A.4th 1215.)

(d) No California case other than Swanson-Birabent addresses whether a parent can aid and abet a crime victimizing his or her child by failing to intervene. However, the other jurisdictions that have considered the issue have usually decided it in the affirmative (Alabama, Alaska, Illinois, Kansas, North Carolina), while only a few jurisdictions have decided that parental inaction does not provide a basis for criminal liability (Massachusetts, Washington). “We are satisfied that the better rule is that parents have a common law duty to protect their children and may be held criminally liable for failing to do so: a parent who knowingly fails to take reasonable steps to stop an attack on his or her child may be criminally liable for the attack if the purpose of nonintervention is to aid and abet the attack. . . . [S]uch intentional conduct in support of an aider and abettor can support liability for implied malice murder.” (160 C.A.4th 1219.)

(e) Liability as an aider and abettor requires that the parent, by his or her inaction, intend to aid the perpetrator in commission of the crime, or a crime of which the offense committed is a reasonable and probable outcome. Here, the instructions correctly required the jury to find defendant’s intent and conduct separately. Under the instructions, the jury could reasonably infer defendant’s intent to aid L from her presence at the scene of the crime, her duty to protect her child, and her failure to do so. (160 C.A.4th 1219.)

(f) Defendant argues that instructing that a parent must take every step reasonably necessary under the circumstances implies that a parent must do whatever is necessary to protect his or her child, regardless of the danger to the parent in doing so. That is not a reasonable reading of the instruction, and a reasonable juror would not understand it in that way. The instruction informed the jury that the parent's duty is to take all steps reasonably necessary under the circumstances, not to take every possible step regardless of risk of harm to the parent. (160 C.A.4th 1220.)

(g) Defendant’s argument that her actions were reasonable under the circumstances is not supported by the facts. Although defendant reprimanded L, she made no effort to aid her son: she did not scream, call 911, ask a neighbor to help or call for help, or do anything else. Instead, she went to sleep and left her son alone with L. From this evidence, a reasonable jury could have inferred that defendant was capable of taking some action to protect the child, but that she chose not to do so. These inferences support the conclusion that defendant did not take every step reasonably necessary under the circumstances to protect her child. (160 C.A.4th 1221.)

Witkin References

On aiding and abetting generally, see 1 Cal. Crim. Law (3d), Introduction to Crimes, §78 et seq.

On aider and abettor liability for inaction, see 1 Cal. Crim. Law (3d), Introduction to Crimes, §79

On criminal liability for inaction as requiring duty to act, see 1 Cal. Crim. Law (3d), Elements, §22

On second degree murder, see 1 Cal. Crim. Law (3d), Crimes Against the Person, §163 et seq.