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Name: People v. Rolon
Case #: B197488
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/11/2008
Summary

A parent has a common-law duty to protect his/her minor child, and a parent who knowingly fails to take reasonable steps to stop an attack on his/her child can be liable for implied malice murder as an aider and abettor. Lopez is the father of six of appellant’s children, including the one-year-old victim. Despite a court order prohibiting Lopez from visiting appellant or staying at her apartment, he had been there approximately a week before the child’s death. On the date of the incident, appellant knew that Lopez had punched the child and thrown him against the wall. Nevertheless, she sought no help for her child but, instead, went to sleep and left her child alone with Lopez who brutally killed the infant. Appellant was charged with and convicted of aiding and abetting, implied malice and second degree murder. On appeal, she complained that jury instructions holding that she had a duty to take all steps reasonably necessary to protect her son and that failure to perform her duty was an affirmative act for the purpose of the charged offenses were error. The appellate court disagreed and, relying, in part on People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, found that aiding and abetting liability can be premised on a parent’s knowing failure to fulfill his/her common-law duty to protect his/her child by taking reasonable steps to protect the child against assault.