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Name: People v. Cockburn
Case #: C038058
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/17/2003
Subsequent History: Rehrg. den. 7/14/03

Appellant was convicted of multiple offenses arising from the kidnap and assault of a minor. One of the convictions was for a violation of Penal Code section 273a, felony child abuse. On appeal, appellant argued that prosecution under the general child abuse statute was preempted by the specific willful injury to a child statute (section 273d). The appellate court here affirmed. The prosecutor could properly elect to prosecute under section 273a rather than 273d. The general statute does not provide for a more severe penalty than the special statute. Further, section 273d requires the defendant to inflict an injury resulting in a traumatic condition. There may be cases where a prosecutor is in doubt whether he can prove that traumatic condition, and may choose to prosecute under 273a instead. The context of the two statutes shows a legislative intent that the prosecutor retains the discretion to prosecute under either statute.