Walker v. Superior Court

BROUSSARD, J., Concurring and Dissenting

I agree with the majority that a prosecution may be maintained against petitioner for involuntary manslaughter. (Pen. Code, § 192, subd. (b).)1 However, I cannot agree that the child endangerment provisions of section 273a are applicable to cases where the parent has omitted to provide necessary medical attendance. Rather the failure to provide necessary medical attendance is made punishable by section 270, and section 273a is not applicable to omissions to *152provide care but to active conduct endangering the child. Moreover, even if the failure to provide necessary medical attendance were punishable under section 273a, the prayer exemption of section 270 must be read into section 273a or the exemption is pointless. It is overwhelmingly clear that the Legislature sought to preclude child endangerment liability of persons coming within the religious exemption in section 270, particularly where prayer is successful, and to apply section 273a to such persons would defeat the legislative intent rendering the religious exemption meaningless.

Section 270 provides in part: “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary . . . medical attendance ... he or she is guilty of a misdemeanor . . .”2 Section 273a provides that a person who “willfully causes or permits” child abuse or endangerment of the child’s health or person is guilty of a felony or a misdemeanor. The section is divided into two subdivisions which use identical language to describe the conduct proscribed except that subdivision (1) of the section applies “under *153circumstances or conditions likely to produce great bodily harm or death” and subdivision (2) of the section applies “under circumstances or conditions other than those likely to produce great bodily harm or death.” Subdivision (1) provides that its violation is punished by imprisonment in the county jail not exceeding one year or in the state prison for two, four or six years. Violation of subdivision (2) is a misdemeanor.3

We must interpret the statutes “in accordance with applicable rules of statutory construction, fundamental among which are those which counsel that the aim of such construction should be the ascertainment of legislative intent so that the purpose of the law may be effectuated [citation]; that a statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts [citations]; and that courts should give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]” (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 458 P.2d 33]; People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656, 741 P.2d 154]; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [127 Cal.Rptr. 122, 544 P.2d 1322].)

When we follow the fundamental rules of statutory construction it is clear that sections 270 and 273a are both concerned with the protection of the health and person of children, that section 270 is applicable to a willful failure to provide necessary care and that section 273a is not applicable to a failure to provide medical care but to willful active conduct causing harm or endangering the child’s health or person.

There can be no rational doubt that the Legislature intended that section 270 should be applicable where a parent fails to provide medical care endangering the health or person of a child. The language of the section speaks of the omission to “furnish necessary . . . medical attendance.” Medical attendance is only necessary when the health or person of the child is *154endangered. The plain language of the first sentence of the section shows that the section applies to child endangering conduct. If the parent in the instant case had not come within the prayer exemption, it is clear that she could be prosecuted under section 270. (See People v. Arnold (1967) 66 Cal.2d 438, 451, 452 [58 Cal.Rptr. 115, 426 P.2d 515] [upholding misdemeanor manslaughter charge on the basis of section 270 prior to adoption of the religious exemption].)

Section 270 is not merely an economic regulation requiring reimbursement of those providing medical attendance. While the third sentence of the section provides that a parent is not relieved of criminal liability because another furnishes the medical care, that sentence may not be read as prohibiting criminal liability when no one provides the necessary support. People v. Sorenson (1968) 68 Cal.2d 280, 287 [66 Cal.Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093], the principal case relied upon by the majority in concluding that the purpose of section 270 is reimbursement (maj. opn., p. 124), expressly states that “ ‘the principal statutory objectives are to secure support of the child’ ” and to protect the public fisc. If there was any doubt as to the legislative intent that the statute should be applied when the child does not receive necessary medical attendance as well as when the state seeks reimbursement, such doubt is dispelled by the adoption of the religious exemption in the last sentence of the section. As the majority recognize, the legislative history shows that the Legislature sought to “shield from liability those parents who provide prayer in lieu of medical care” (maj. opn., pp. 122-123), and it would be absurd to conclude that by adopting that provision the Legislature intended only to exempt a parent from a duty to pay for medical care which was not furnished.

Accordingly section 270, like section 273a, is applicable to child endangerment, and both sections are applicable whether or not the child is injured (see People v. Peabody (1975) 46 Cal.App.3d 43, 46 [119 Cal.Rptr. 780]; People v. Harris (1966) 239 Cal.App.2d 393, 398 [48 Cal.Rptr. 677]). Both sections are found in the same chapter of the Penal Code. The statutes are in pari materia. (People v. Caudillo (1978) 21 Cal.3d 562, 585 [146 Cal.Rptr. 859, 580 P.2d 274]; see 2A Sutherland, Statutory Construction (Sands, 4th ed. 1984) § 51.03, p.467.) Accordingly, it is our duty to construe them together and harmonize them.

We cannot reject application of the pari materia rule on the grounds that section 270 deals not only with child endangerment but also with reimbursement or that section 273a deals not only with child endangerment but also with child abuse. If the pari materia rule were limited to identical statutes, it would serve no purpose at all and could never be applied. The basis of the pari materia rule is that both statutes share the same purpose or *155object. (Ibid.) The pari materia rule applies although the statutes may have additional dissimilar objectives so long as they also share the same common objective.

When we harmonize the statutes, the result is clear. Section 270 imposes a duty upon parents to provide the identified “necessary . . . medical attendance,” and imposes criminal liability when the parent “willfully omits” to do so, thereby endangering the child. Section 273a imposes criminal liability for willfully causing or permitting child endangerment. To avoid conflict between the sections, section 273a should not be construed to apply when the asserted criminal conduct is the omission to perform the duties imposed by section 270, but only when the basis of the child endangerment is active conduct endangering the child, willfully causing or permitting child endangerment. The only active conduct shown by the evidence is that petitioner prayed. Prayer is not prohibited by section 273a.

Moreover, even if it is concluded that the failure to provide necessary medical attendance is punishable under section 273a in cases where the section 270 prayer exemption is inapplicable, we may not apply section 273a to cases where that exemption applies. The conclusion is unavoidable that the Legislature intended to exempt parents who utilize prayer treatment from the statutory requirement to provide “necessary . . . medical attendance.” As pointed out above, medical attendance is necessary when its absence endangers the health or person. To hold that section 273a applies to parents who utilize prayer treatment in accordance with the exemption in section 270 means that those exempt may always be prosecuted under section 273a for child endangerment and that, since injury is unnecessary for child endangerment, it would be irrelevant whether God answered the prayers.

The legislative intent to provide some exemption from criminal liability is overwhelmingly clear, although the extent of the exemption may not be clear. The exemption is obviously directed at the duty to protect the child by securing medical attendance imposed by section 270. It would be unrealistic and contrary to all of the legislative history we have been furnished to conclude that the exemption is directed at the economic aspect of section 270.4 There is nothing in the legislative history to indicate that the Legisla*156ture sought to eliminate a nonexistent duty to pay for medical services which were never rendered or was concerned primarily with reimbursement for medical services paid for by others.

The religious exemption must be applied to the child endangerment provisions of section 273a or the legislative intent is totally defeated. It must be applied to cases where the failure to provide necessary medical attendance endangers the child’s health but does not result in harm.

I would reverse the judgment of the Court of Appeal with directions to grant the petition for writ of prohibition insofar as it seeks dismissal of the section 273a charge and to deny it insofar as it seeks dismissal of the manslaughter charge.

Petitioner’s application for a rehearing was denied January 9, 1989.

All further statutory references are to the Penal Code unless otherwise indicated.

Section 270 provides: “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. This statute shall not be construed so as to relieve such parent from the criminal liability defined herein for such omission merely because the other parent of such child is legally entitled to the custody of such child nor because the other parent of such child or any other person or organization voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child or undertakes to do so.

“Proof of abandonment or desertion of a child by such parent, or the omission by such parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse.
“The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts.
“The provisions of this section are applicable whether the parents of such child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned.
“The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination.
“If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute ‘other remedial care’, as used in this section.”

Section 273a provides: “(1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.

“(2) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health may be endangered, is guilty of a misdemeanor.”

I agree with the majority conclusion that no weight may be given to the Assembly staff report urging that section 273a should be amended to incorporate the religious exemption or to the Senate staff report raising questions as to a possible conflict between the exemption and the child harm provisions of section 273a. (See maj. opn., pp. 128-129.) We cannot tell whether the members of the Legislature decided the amendment was undesirable, was unnecessary or should be deferred so as to avoid interruption of the enactment process.

I would also point out that neither report focused on child endangerment; both were concerned with the necessity for amendment of section 273a with respect to the child abuse por*156tion of the section and the manslaughter statute, cases where there is not merely endangerment but harm.