In People v. Collins, a 4-3-1-2 Supreme Court today holds the evidence did not support a second-degree murder conviction of a mother who didn’t protect her two-month old son from being murdered by the baby’s father. The father, a meth addict who had abused both his son and the mother in the past, killed his son while the mother was in another room of their home. It’s one of those rare appeals where a substantial evidence argument succeeds.
The majority opinion by Justice Kelli Evans (joined by Justices Goodwin Liu, Joshua Groban, and Martin Jenkins) says it’s a “close case,” but concludes that, “[a]pplying the law governing implied malice murder in the distinct context of a prosecution based on a failure-to-protect theory,” the mother didn’t “harbor[ ] the requisite mens rea to convict her of second degree murder under either a direct aider and abettor theory or a direct perpetrator theory.”
The majority acknowledges that “a reasonable jury could infer that [the mother] knew to a substantial degree of certainty that [the father] might commit an act of serious, but nonlethal, abuse based on her knowledge of [the father’s] state and having witnessed his past acts of abuse” and that “a parent’s failure to act can constitute an affirmative act for the purposes of criminal liability in some situations.” But, the opinion continues, while “[s]uch knowledge might be sufficient to find [the mother] liable for a different crime, such as, for instance, felony child endangerment,” what was missing for a murder conviction was “a substantial degree of certainty that a third party is inflicting, or will inflict, life-threatening harm.”
The opinion also finds significant the abuse the father had inflicted on the mother. Stating that “parents have no legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children,” the majority finds important “a significant body of social science evidence demonstrat[ing] that the risk of being killed by one’s abuser increases significantly when a victim of intimate partner violence attempts to leave their abuser.”
Justice Liu writes a concurring opinion (signed by Justices Groban and Evans) “to express concern that failure-to-act liability carries a significant risk of unfairly punishing women who do not live up to gendered and class-based expectations of motherhood.” “In many ways,” Justice Liu says, “our society valorizes motherhood, but it also comes down hard on ‘bad mothers.’ ”
Justice Leondra Kruger says that she concurs in the majority opinion, except for a section with dictum “clarify[ing] several legal principles regarding the requisite actus reus for second degree murder based on one’s failure to act.”
Chief Justice Patricia Guerrero, joined by Justice Carol Corrigan, issues a 53-page dissent. (The Chief Justice has only recently expressed differences with a court majority in any case. (See here and here.)) She writes it might have been a close case for a jury, but it’s not for an appellate court under a substantial evidence standard of review. “Whether the members of this court would have come to the same conclusion [as the jury] is — or should be — irrelevant,” she says.
The dissenters assert that “[t]he jury here could reasonably find that [the mother] did not take every reasonably necessary step to protect [the baby] . Given the magnitude of the threat facing [the baby] . . . a reasonable parent in [the mother’s] situation would not have allowed [the father] to care for [the baby] while he was abusing methamphetamine. A reasonable parent would have either cared for [the baby] herself, forced [the father] to leave, or left [the father] and taken [the baby] with her.” They also find unconvincing for this case the majority’s reliance on the general danger to abuse victims when they leave their abusers: “[The mother] never said she was afraid of leaving [the father], and she never said that she believed he would kill her if she tried. At trial, both [the mother] and her counsel denied and minimized the abuse she had suffered.”
Regarding an issue that the court chose not to review, the Court of Appeal concluded the record on direct appeal did not support the mother’s argument that her trial attorney was constitutionally ineffective for failing to present a defense of intimate partner battering.
The court reverses the Second District, Division Five, Court of Appeal’s unpublished opinion. It also says that the Second District, Division Four, decision in the similar case of People v. Rolon (2008) 160 Cal.App.4th 1206 has been overruled by Senate Bill 1437, because that 2018 legislation eliminated liability for murder under the natural-and-probable-consequences doctrine. The Supreme Court denied review in Rolon with only four justices participating.
Here’s an unusual tidbit about the case: the matter was tried in Kern County Superior Court and the appeal was, as normal, to the Fifth District, but the Supreme Court transferred the appeal to the Second District some seven months after the case was fully briefed. (See here and here, and, generally, here.) We don’t know the reason for the transfer.