California Court of Appeal May 20, 2015 No. D065008Unpublished
Filed 5/20/15 P. v. Cruz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065008
Plaintiff and Respondent,
v. (Super. Ct. No. SCE309627)
DAVID CHRISTOPHER CRUZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Herbert J. Exarhos, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Raquel M.
Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted David Christopher Cruz of second degree murder and assault on
a child with force likely to cause great bodily injury resulting in death. The court
sentenced him to 25 years to life on the assault conviction and stayed his sentence of 15
years to life on the murder conviction. Cruz appeals, contending (1) the trial court erred
in denying his pretrial motion to represent himself under Faretta v. California (1975) 422
In Albritton, supra, 67 Cal.App.4th 647, this Court rejected the same argument
that Cruz makes here, namely that section 237ab is an unconstitutional strict liability
offense. We explained that "[s]ection 273ab is a general intent crime. The mens rea for
the crime is willfully assaulting a child under eight years of age with force that
objectively is likely to result in great bodily injury—that is, the assault must be
intentional." (Albritton, at p. 658.) We concluded that in order to violate section 273ab,
"[o]nly a general criminal intent to commit the proscribed act—assault on a child under
eight years old with force that objectively is likely to result in great bodily injury—is
required. Whether the intended act in its nature is one likely to produce great bodily
harm is a question for the jury. It is not required that the actor intend to produce great
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bodily injury or death, nor is it required that he know or should know the act is
intrinsically capable of causing such consequences." (Albritton, at p. 659.)
Cruz asserts that due process requires the offense have a mens rea element
associated with the death because the accused faces the same 25 years to life penalty as
first degree murder. It is "immaterial that the punishment for a violation of section 273ab
is the same as first degree murder. The Legislature exercised its prerogative in selecting
the range of punishment, and there is no principle of law that precludes the same
punishment for different crimes." (People v. Norman (2003) 109 Cal.App.4th 221, 228.)
Cruz also argues that the sentence imposed by section 237ab violates principles of
the merger doctrine because it imposes a life sentence for an assault. This argument has
no merit. "[The merger doctrine] states a felony-murder conviction cannot be based on
an assault resulting in death because such a rule 'would effectively preclude the jury from
considering the issue of malice aforethought in all cases wherein homicide has been
committed as a result of a felonious assault—a category which includes the great
majority of all homicides.' [Citation.]" (People v. Norman, supra, 109 Cal.App.4th at pp.
227-228.) The merger doctrine does not apply in this case because section 237ab "is
neither a murder statute nor a felony-murder statute." (Ibid.) Further, while Cruz was
convicted of second degree murder, that conviction was not based on a felony murder
theory; instead, the jury was instructed on express and implied malice. Accordingly, the
merger rule does not apply.
Lastly, we reject Cruz's instructional error claim. He contends the jury
instructions were incomplete because CALCRIM No. 820 did not include a requirement
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that he knew or a reasonable person would have known his act would result in death. As
we explained, a violation of section 237ab does not require that the defendant knew his
act would result in death. CALCRIM No. 820 properly instructs the jury that the People
must prove the defendant committed the assault by means of force that to a reasonable
person would be likely to produce great bodily injury. In that regard, the instruction
requires the jury to find "[w]hen the defendant acted, he was aware of facts that would
lead a reasonable person to realize that his act by its nature would directly and probably
result in great bodily injury to the child." (CALCRIM No. 820.) No further knowledge
element was required. Thus, Cruz's instructional error claim fails.
III. Equal Protection
Cruz argues the statutory penalty of 25 years to life on his assault conviction
violates the equal protection clause of the federal Constitution. In particular, he contends
offenders like him who commit an assault on a child under eight years old in their care
and custody are similarly situated to offenders who commit the same act on anybody else
yet receive sentences ranging from probation to four years imprisonment.
The Fourteenth Amendment to the United States Constitution provides that no
state shall "deny to any person within its jurisdiction the equal protection of the laws." A
similar requirement appears in the California Constitution, article I, section 7. "Equal
protection applies to ensure that persons similarly situated with respect to the legitimate
purpose of the law receive like treatment; equal protection does not require identical
treatment." (People v. Basuta (2001) 94 Cal.App.4th 370, 398 (Basuta).)
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" ' " 'The first prerequisite to a meritorious claim under the equal protection clause
is a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether
persons are similarly situated for all purposes, but 'whether they are similarly situated for
purposes of the law challenged.' " ' " (People v. Jeha (2010) 187 Cal.App.4th 1063, 1073,
quoting People v. McKee (2010) 47 Cal.4th 1172, 1219.) Even if the challenger can
show that the classification differently affects similarly situated groups, "[i]n ordinary
equal protection cases not involving suspect classifications or the alleged infringement of
a fundamental interest," the classification is upheld unless it bears no rational relationship
to a legitimate state purpose. (Weber v. City Council (1973) 9 Cal.3d 950, 958-959.)
Cruz recognizes that we rejected a challenge to section 273ab on equal protection
grounds in Basuta, supra, 94 Cal.App.4th at pp. 398-399, but asserts a similar argument
in part to preserve the issue for federal review. In Basuta, we concluded a defendant
convicted of violating section 273ab was not similarly situated to other offenders who
murder children. (Basuta, at p. 399.) We explained, "[a] violation of section 273ab
requires not only an assault on a child that results in death but also that the defendant
have care or custody of the child. The element of care and custody in section 273ab
creates a meaningful distinction between those committing that offense and murderers.
Those who have the care and custody of children not only have a particular
responsibility and occupy a position of trust, they are also the persons most likely to
kill children." (Ibid.) The Basuta court further concluded the rational relationship test
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applied, rather than the strict scrutiny test, and "treating murderers and those who violate
section 273ab differently bears a rational relationship to a legitimate state interest."
(Ibid.)
Similarly to the defendant in Basuta, Cruz was not denied equal protection
because he is not similarly situated with offenders who commit assaults on others not
covered by section 273ab. Cruz was entrusted with the care and custody of his victim.
This responsibility and position of trust distinguishes his offense from other assault
crimes. In accordance with Basuta, Cruz's sentence was rationally related to the
legitimate state interest in protecting vulnerable children from caretakers committing
such intentional acts. In sum, we are not persuaded by Cruz's equal protection challenge.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for second degree murder and assault on a child resulting in death, holding that the trial court properly denied the defendant's Faretta motion as untimely and equivocal, and that the assault statute is a constitutional general intent crime.
Issues
Did the trial court err in denying the defendant's pretrial Faretta motion for self-representation?
Does Penal Code section 273ab violate due process by functioning as an unconstitutional strict liability offense?
Does the 25-years-to-life penalty for assault on a child under section 273ab violate the equal protection clause?