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Name: People v. Clark
Case #: C064590
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/29/2011

Felony child abuse does not require force likely to produce great bodily injury Appellant argued with his wife and 14-year-old son, pushing the boy to the ground and slapping him. Felony child abuse (Pen. Code, sec. 273a, subd. (a)) proscribes four branches of conduct. Here, the prosecutor proceeded on the third branch, asserting that appellant willfully caused injury to his son under circumstances or conditions likely to produce great bodily injury. Relying on cases involving assault with force likely to produce great bodily injury, that focus on the force used, appellant contended that there was insufficient evidence to support the conviction. The appellate court found the reliance erroneous and that with felony child abuse, although the force used may be a circumstance in evaluating the offense, the jury can also consider the characteristics of the victim and defendant; the location of the abuse; the potential response of the victim; any injuries involved; and any pain experienced by the victim. Here, although the son sustained minimal injuries, the potential for greater harm was sufficient to support the felony conviction.

A defendant may be entitled to a self-defense instruction as to the offense of child abuse. The trial court denied appellant’s request to instruct as to self-defense with respect to the felony child abuse count, although it agreed to do so with the assault count concerning the son. In this case, the court found error and that under the third branch of child abuse, self-defense can be asserted, focusing on the nature of the threat to defendant rather than the source. The court observed that a parent has the right to administer reasonable discipline and that both self-defense and parental discipline may provide legal justification for the use of force against the child, but are not congruent and the amount of force used may be different. Although the appellate court found error in failing to provide a self-defense instruction, the error was harmless.