Opinion

People v. Collins

Court
California Supreme Court
Filed
Jan 6, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 33.5%

The opinion

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BRITTNEY COLLINS,

Defendant and Appellant.

S279737

Second Appellate District, Division Five

B322744

Kern County Superior Court

MF013183B

January 6, 2025

Justice Evans authored the opinion of the Court, in which

Justices Liu, Groban, and Jenkins concurred.

Justice Liu filed a concurring opinion, in which Justices

Groban and Evans concurred.

Justice Kruger filed a concurring opinion.

Chief Justice Guerrero filed a dissenting opinion, in which

Justice Corrigan concurred.

PEOPLE v. COLLINS

S279737

Opinion of the Court by Evans, J.

This case concerns implied malice murder liability based

on a parent’s failure to act — specifically, their failure to protect

their child from another person’s fatal act. Defendant Brittney

Collins was convicted of second degree murder for the death of

her two-month-old son, Abel James Norwood, who was killed by

his father, Matthew Norwood. Norwood committed the fatal act

while Abel was under Norwood’s care and Collins was in another

room. Given the facts established at trial, we recognize this is a

close case. We hold, however, that the evidence was insufficient

to convict Collins of second degree murder. Applying the law

governing implied malice murder in the distinct context of a

prosecution based on a failure-to-protect theory, the evidence

fails to establish Collins harbored the requisite mens rea to

convict her of second degree murder under either a direct aider

and abettor theory or a direct perpetrator theory. Accordingly,

we reverse the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Collins and Norwood began their romantic relationship in

2017. Both Collins and Norwood used methamphetamine, and

Norwood also used heroin. In early 2018, Collins became

pregnant with their child. While Collins stopped using drugs

during her pregnancy, Norwood’s drug use continued.

When Collins was pregnant, Norwood made several

comments, including in Collins’s presence, that he did not want

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to be a dad and did not want the baby. When Collins was seven

months pregnant, Norwood told a neighbor he did not want to

be a dad and tried poking Collins in the abdomen with a

screwdriver. Norwood physically abused Collins while she was

pregnant, commenting at one point that he wanted to make her

lose the baby.

Collins suffered complications during her pregnancy,

including gestational diabetes and high blood pressure. On

August 16, 2018,1 she gave birth to Abel by an emergency

cesarean section. Collins nearly died during childbirth. After

the birth, Abel was hospitalized for a week in the neonatal

intensive care unit. Collins developed an infection in her uterus

from the cesarean section and was placed on antibiotics. As

Collins recovered from childbirth, Norwood’s drug use,

volatility, and abuse continued, as described in further detail

below.

Following Abel’s birth, Collins brought Abel to three “well-

baby” visits — the last of which occurred on October 16. In

addition to these visits, Collins brought Abel to urgent care on

October 10 after noticing that he seemed to have difficulty when

hiccupping. A nurse practitioner conducted a full body physical

examination of Abel and did not observe any physical injuries.

She determined Abel had acid reflux. During Abel’s last

wellness check on October 16 — the day before the fatal act —

Abel received his two-month vaccination shots. The same nurse

practitioner performed a physical examination with Abel

undressed, examining his skull, lungs, heart, mouth, and

extremities, along with his body and skin. She also pushed on

1

Unless otherwise indicated, all relevant events occurred in

2018.

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Opinion of the Court by Evans, J.

his abdomen to check for signs of pain. She did not observe any

physical injuries. Collins informed her that Abel’s leg was a

little swollen, but the nurse told Collins it “ ‘look[ed] fine’ ” and

recommended to bring him back if it worsened. At these

appointments, Collins did not report any abuse or suspected

abuse of herself or Abel.

On October 17, Collins was recovering on the couch from

complications caused by the cesarean section while Norwood

acted as Abel’s primary caregiver. As Abel’s parents, Collins

and Norwood shared caretaking responsibilities. Collins’s

grandmother, who also lived with Collins and Norwood, was

present.

Earlier that morning, Norwood had used

methamphetamine, and Collins and Norwood argued about his

drug use. Collins told Norwood to move out. Norwood became

upset and broke Collins’s cell phone.

Throughout the rest of the day, Collins was in the front

room, accompanied by her grandmother, on the couch. She was

periodically sleeping and also applying for jobs. Abel was with

Collins on the couch earlier in the morning and slept in the back

bedroom for most of the day.

At 1:00 p.m., Collins woke up from a nap and checked on

Abel while he was sleeping in the back bedroom. Initially, she

thought his breathing seemed shallow, but then it normalized.

She returned to the couch in the front room.

At 3:30 p.m., Abel woke up from sleeping in the back

bedroom. Collins and her grandmother were still in the front

room, and Norwood told them that he was going to change and

feed Abel. Collins offered to feed and change Abel, but Norwood

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Opinion of the Court by Evans, J.

insisted he do so himself. Norwood went to the back bedroom,

and Collins and her grandmother remained in the front room.

Sometime later, Collins heard a bang from the back

bedroom — which turned out to be Norwood committing the

fatal act. She did not hear Abel cry after the noise. Collins

described the noise as similar to a cell phone being dropped from

one foot high onto a table. Over the prior several weeks, she had

heard a similar noise five to six times when Norwood was caring

for Abel by himself. On those prior occasions, Abel had cried

following the bang and Collins would check on Abel and ask

Norwood about the noises. On those previous occasions,

Norwood told her that he accidentally kicked the bassinet or

knocked into a tote or the door. On this occasion, Collins

remained in the front room and did not check on Norwood and

Abel in the back bedroom.

Around 15 to 20 minutes after Collins heard the loud

noise, Norwood came back to the front room. He told Collins and

her grandmother that Abel did not want his bottle and that Abel

had gone back to sleep. Norwood, who was acting antsy, then

left for an errand. Collins remained in the front room.

Approximately one hour later, Collins checked on Abel and

found him in a state of medical emergency. He appeared to be

having a seizure. He was foaming at the mouth and his body

was pale. Collins screamed and got help from two of her

neighbors as her grandmother held Abel. One of the neighbors

called 911. Abel was running a high fever, and the other

neighbor put cool water on him. Collins was crying hysterically.

Paramedics arrived and transported Abel to the hospital. The

responding medics did not observe any physical injuries.

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Opinion of the Court by Evans, J.

Once Abel was transported to the hospital, his injuries

started to show externally, with bruising. Medical personnel

obtained x-rays and a CT scan. The x-rays and scan revealed

extensive injuries, largely to Abel’s skull and ribs, consistent

with child abuse. Based on these findings, authorities

questioned Collins and Norwood at the hospital.

On October 18, police executed a search warrant of

Collins’s grandmother’s residence. They recovered a small

amount of drugs and a hypodermic needle. There was also a

suitcase packed with men’s clothing on the bed.

After agreeing to speak with officers at the police station,

Collins and Norwood sat in the back of a patrol car. During their

conversation in the back of the car, Norwood told Collins he

would never throw her under the bus, and Collins assured him

that she would not throw him under the bus either.

During an initial police interview, Collins claimed the

drugs were hers, although they belonged to Norwood. She

stated that Norwood was not abusive and suggested that her

grandmother may have dropped Abel. She elaborated that her

grandmother had physical limitations and would pick Abel up

even though she directed her grandmother not to do so. When

Collins was informed of the extent of Abel’s injuries, she said, “I

wouldn’t bring this little boy into the world to hurt him.

Especially, that I might not even get another one.” She

explained she had polycystic ovarian syndrome and had been

diagnosed with infertility.

At one point, the detectives told Collins: “[M]om’s the

person that watches the kid. Mom’s the person that takes care

of the baby. Mom’s the person that protects their baby. Right?”

They later asked, “Okay so what does mother intuition telling

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Opinion of the Court by Evans, J.

[sic] you?” Collins replied, “That his dad made a mistake

because of the drugs.”

The next day, detectives interviewed Collins a second

time. During that interview, Collins described physical abuse

that Norwood had inflicted upon her. When Collins maintained

she did not know how Abel was injured, the detective asked

Collins “what is your gut as a mother telling you right now? Mo-

moms are built to have an — an instinct. And — and, to just in

their gut know certain things, what is your gut telling you?”

Collins later stated, “I know earlier you asked me about in-

intuition and stuff and like what I think. I really think his dad

did it.”

Collins elaborated that she suspected Norwood had been

abusing Abel when she had heard loud noises coming from the

back bedroom on five or so different occasions when Norwood

cared for Abel alone. On those past occasions, Abel would cry,

and Collins would check if he was okay; Norwood would provide

an innocent explanation and question whether she was accusing

him of abuse. She told the detectives that, the day after Abel

was taken to the hospital, she bumped into the door and it did

not make the same sound that Norwood caused. She explained

that, although she questioned Norwood, she told herself, “[O]h

that’s [Abel’s] dad and I’m supposed to love and trust him. I —

I believe what he tells me. . . . That’s dad. That’s daddy. I trust

him.”

Collins then described Norwood’s past acts of abuse

towards both herself and Abel — which she attributed to

Norwood’s rage from heavy drug use. During her pregnancy,

Norwood choked Collins and kneed her in the stomach, although

he later claimed it was accidental. When Collins was nine

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Opinion of the Court by Evans, J.

months pregnant, Norwood pushed Collins and told her he

would make sure Abel was not born. She believed Norwood was

trying to make her lose Abel when he pushed her down hard and

jumped on top of her when she was pregnant. Norwood also

kicked her in the face, knocking her tooth loose. A week before

Norwood’s fatal act, he hit her so hard she was sore for a week,

slammed her, and hit her nose.

Regarding Norwood’s abuse of Abel, Collins explained

Norwood “slam[med] dope all the time” and was often “too high

to deal with” Abel. She stated Norwood would partially cover

Abel’s mouth when Abel was crying loudly and sometimes

bounced him too hard. 2 She described how she intervened in

2

The Attorney General asserts Collins saw Norwood

“choke” Abel. Collins first used the “choking” description in

speculating that Norwood covering Abel’s mouth was “possibly

maybe even choking him ’cause he chokes me so why would he

not choke a baby?” Shortly thereafter, she summarized

Norwood’s abuse to the detectives, including “what looks like

choking which probably — it doesn’t look like choking, it was

choking.” While a detective testified at the preliminary hearing

that Collins had stated “Norwood forcibly place[d] his hand over

Abel’s mouth as well as place[d] his hand forcibly over his mouth

and neck area,” a review of the record reveals Collins did not say

Norwood put his hand around Abel’s neck. Relatedly, at oral

argument, the Attorney General acknowledged his “suffocating”

description referred to Norwood covering Abel’s mouth.

The dissent describes our discussion of the “choking”

references as “labored.” (See dis. opn., post, at p. 10.) More

generally, it criticizes our recitation of the facts — which largely

tracks that of the Attorney General and the Court of Appeal —

and offers a “corrective” (ibid.) of over 20 pages. Our command

as a reviewing court in evaluating a sufficiency of the evidence

claim is to consider the actual evidence before the jury and

reasonable inferences favorable to the prosecution that the jury

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Opinion of the Court by Evans, J.

those situations by telling Norwood to stop or by taking Abel

away from Norwood. She maintained she “really didn’t know”

Abel was being injured prior to the fatal incident. She said she

had witnessed Norwood roll Abel over by his leg, bump his head

into things, squeeze him “too tight,” and push down on his chest

“enough to probably break a rib.” On one occasion, she saw

Norwood and Abel on the bed, with Abel’s eyes red, and thought

Norwood might have hit Abel although she “never got there fast

enough.” During the interview, she commented, “he chokes me

so why would he not choke a baby?”

When a detective pointed out Collins had in fact witnessed

abuse, Collins responded she had told Norwood to leave a few

times and stated she was afraid to call the police. She indicated

Norwood had threatened her if she ever sent him to jail. She

stated she was scared of Norwood trying to kill her. She

explained Norwood put a camera in their room when she was

four months pregnant “so [he] could watch [her].” Collins also

reported that Norwood overdrew all of her bank accounts and

that, consequently, she no longer had her own bank accounts.

She repeated, “If I could, I would’ve called the police on him the

first time I saw him put his hand over [Abel’s] mouth and

manned up, not been afraid of him or called the police the first

time he hit me when I was pregnant.” She was aware Norwood

had previously been convicted of domestic violence. She stated

could have drawn from that evidence. The dissent’s descriptions

(such as Collins having “friends and former foster parents to

help” based on her former foster mother’s testimony that she

“probably” would have let Collins live with her) and phrasing

(such as “callously suggested”) reveal its effort to import its own

view of the evidence into the calculus and is therefore

inconsistent with this command.

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Opinion of the Court by Evans, J.

that, based on Norwood’s abuse of her, she believed Norwood

was responsible for Abel’s injuries.

On October 24, Abel died at two months old from blunt

force trauma.

On December 19, an information was filed charging

Collins and Norwood with murder (Pen. Code, § 187, subd. (a))

and assault of a child under eight years old resulting in death

(Pen. Code, § 273AB, subd. (A)).

During her pretrial detention, Collins used a razor to cut

her wrists and said her husband killed her son. She was taken

to the infirmary.

At trial, a forensic pathologist testified Abel had fresh

injuries from blunt force trauma on the right back side of his

head with one external head injury — a bruise on the top side of

his forehead. The pathologist generally referred to the injuries

being caused by one blow and ultimately concluded the injuries

were caused by Abel being swung by his leg into a hard surface.

The pathologist also stated that Abel had a fresh fracture to his

left leg. The pathologist opined Abel’s injuries were caused by

someone using his leg as a handle and throwing him against

either the wall or the ground. The pathologist, as well as a

radiologist, opined Abel had other fractures — mainly to his

ribcage — nearly all of which occurred seven to fourteen days

before the fatal injury. An ophthalmologist testified that an

examination of Abel’s eyes revealed injuries consistent with

trauma.

The nurse practitioner testified about her physical

examinations of Abel. During her examinations of Abel on

October 10 and October 16, she observed no physical injuries.

She testified that she looked at Abel’s eyes and palpitated his

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Opinion of the Court by Evans, J.

ribcage. She “saw no signs of bruising, no signs of trauma, no

signs of cuts, scrapes, anything like that.” She did not note

anything following Abel’s assessment because “[h]e seemed like

a normal two-month baby.” She did not request any X-rays for

Abel because she “didn’t see any reason to.”

In her defense, Collins testified she saw Norwood bounce

Abel too hard and heard loud bangs five or six times when

Norwood cared for Abel. She testified she never saw Norwood

physically hurt Abel. She testified she had lied about witnessing

Norwood bump Abel’s head into things and pin Abel down

because she wanted to return to Abel and thought the detectives

would let her go if she told them what they wanted to hear. She

described some of the physical abuse she endured during her

pregnancy — including Norwood pushing her down and choking

her. She maintained that she was afraid of confronting Norwood

about whether he was hurting Abel. She testified that she relied

on Norwood to help take care of Abel due to her complications

from the cesarean section. Collins explained that she and Abel

relied on Norwood’s income. She also stated she attributed

Norwood’s rage to his drug use. She testified that she had

confronted Norwood about his drug use that morning, that she

had told Norwood to move out, and that Norwood was packing

to leave. Collins stated, “I should have tried harder to make him

leave” and she “never intentionally failed to act” to protect Abel.

Collins also presented various character witnesses,

including two of her foster parents, who testified as to her

honesty. Collins’s grandmother, who lived with Collins and

Abel, testified that Collins was a caring and attentive mother

and that Abel had no visible injuries prior to October 17. Her

grandmother testified that Collins had been recovering on the

couch and applying for jobs that day. Her grandmother stated

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Opinion of the Court by Evans, J.

that Collins and Norwood had gotten into an argument around

9:30 a.m. During the argument, Norwood broke Collins’s phone

and Collins had told Norwood to move out.

The prosecutor’s theory was that Collins knew “[Norwood]

was a chronic methamphetamine user, a violent abusive person

and [Collins] let him stay near Abel and inflict injuries.” The

prosecutor continued: “This is the person she’s letting watch her

child. [Norwood] was abusive . . . choked her, kneed her while

pregnant, kicked her.” The prosecutor argued Collins knew she

should have called the police, but she picked Norwood over Abel.

The trial court instructed the jury on two theories of

second degree murder as follows: (1) Collins directly aided and

abetted Norwood in the commission of the murder (CALCRIM

Nos. 400 & 401); and (2) she was a direct perpetrator of the

murder based on her failure to act (CALCRIM No. 520).3 The

trial court also gave a special instruction regarding the parental

duty to act, which provided: “A parent has a legal duty to his or

her minor child to take every step reasonably necessary under

the circumstances in a given situation to exercise reasonable

care for the child, to protect the child from harm, and to obtain

reasonable medical attention for the child.”

On October 21, 2020, Collins’s jury convicted her of second

degree murder.4 Her jury found her not guilty of assault of a

3

The Judicial Council has since revised or supplemented

these jury instructions following People v. Reyes (2023)

14 Cal.5th 981 (Reyes).

4

Collins and Norwood were tried jointly with separate

juries. Norwood’s jury convicted him of second degree murder

and assault on a child by means of force likely to cause great

bodily injury resulting in death. The trial court sentenced him

to 25 years to life.

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Opinion of the Court by Evans, J.

child under eight years old resulting in death but guilty of the

lesser included offense of assault with force likely to cause great

bodily injury. The trial court sentenced Collins to 15 years to

life and stayed the remaining term of three years for the assault

count.

The Court of Appeal affirmed Collins’s murder conviction

on the ground that Collins “knew of Norwood’s abuse of Abel but

intentionally failed to take any reasonable steps to protect the

baby — including on the day in question when [she] knew

Norwood was high and still angry from their earlier argument.”

The Court of Appeal further reasoned Collins knew Abel would

be fussier than usual having just had his vaccination shots, did

not check on Abel after hearing a bang, and protected Norwood

at his direction after Abel’s hospitalization. The Court of Appeal

ultimately concluded “a reasonable juror could find [Collins], by

inaction and even some affirmative actions, knowingly failed to

protect her son and thereby aided and abetted Norwood’s

murder of Abel.”

II. DISCUSSION

We granted review to determine whether sufficient

evidence supports Collins’s second degree murder conviction for

the death of her infant son, Abel, based on her failure to protect

him from his father, Norwood. Below, we clarify the requisite

elements of implied malice murder in the distinct context of

conferring criminal liability based on one’s failure to act, and

apply those elements as clarified to the particular facts of this

case.

In considering a sufficiency of the evidence claim, we

review “the whole record in the light most favorable to the

judgment below to determine whether it discloses substantial

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Opinion of the Court by Evans, J.

evidence — that is, evidence which is reasonable, credible, and

of solid value — such that a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.” (People v.

Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) Substantial

evidence is “ ‘evidence that “reasonably inspires confidence and

is of ‘solid value.’ ” ’ ” (People v. Marshall (1997) 15 Cal.4th 1,

34.)5

“ ‘Evidence which merely raises a strong suspicion of the

defendant’s guilt is not sufficient to support a conviction.

Suspicion is not evidence, it merely raises a possibility, and this

is not a sufficient basis for an inference of fact.’ [Citation.] The

substantial evidence rule mandates consideration of the weight

of the evidence before deferring to the conclusions drawn from

the evidence by the trier of fact. ‘[I]n determining whether the

record is sufficient . . . the appellate court can give credit only to

“substantial[”] evidence, i.e., evidence that reasonably inspires

confidence and is “of solid value.” ’ ” (People v. Kunkin (1973) 9

Cal.3d 245, 250 (Kunkin).)

A jury must avoid “ ‘ “unreasonable inferences and not . . .

resort to imagination or suspicion.” [Citation.]’ [Citation.]

‘Mere conjecture, surmise, or suspicion is not the equivalent of

reasonable inference and does not constitute proof.’ ” (People v.

Anderson (1968) 70 Cal.2d 15, 24 (Anderson).)

5

Although the dissent says that today’s opinion is not

faithful to the standard of review, our analysis takes no issue

with that standard. The guidance that we undertake involves

the fine distinctions in criminal liability — here, second degree

implied malice murder in the failure to protect context. It is

particularly crucial (and helpful) that we undertake that task in

cases that can be characterized as “close.”

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A. LIABILITY BASED ON FAILURE TO ACT

As an initial matter, the parties agree that Collins’s

liability — as either an aider and abettor or a direct

perpetrator — would be based on her parental duty to act.

Typically, liability for a crime requires an individual to engage

in affirmative conduct. However, criminal liability may be

based on a “negative act” — a willful omission or failure to act —

where there is a duty to act. (1 Witkin & Epstein, Cal. Criminal

Law (4th ed. 2012) Elements, § 23, p. 296.) A duty to act may

derive from the express terms of a statute, another statute, or

common law. (People v. Heitzman (1994) 9 Cal.4th 189, 197–198

(Heitzman).)

We join the majority of our sister courts in recognizing a

parent’s failure to act can constitute an affirmative act for the

purposes of criminal liability in some situations. (See State v.

Walden (N.C. 1982) 293 S.E.2d 780, 784 (Walden); People v.

Stanciel (Ill. 1992) 606 N.E.2d 1201, 1211 (Stanciel); State v.

Edgar (Kan. 2006) 127 P.3d 1016, 1023–1024; but see

Commonwealth v. Raposo (Mass. 1992) 595 N.E.2d 773, 777 [a

parent’s inaction cannot provide a basis for accessory liability];

State v. Jackson (Wn. 1999) 976 P.2d 1229, 1233–1235 [same].)

As this court has recognized, “[a] criminal statute may

. . . embody a common law duty based on the legal relationship

between the defendant and the victim, such as that imposed on

parents to care for and protect their minor children.” (Heitzman,

supra, 9 Cal.4th at p. 198, citing LaFave & Scott, Criminal Law

(2d ed. 1986) § 3.3, pp. 203–204 and People v. Burden (1977) 72

Cal.App.3d 603 (Burden).)

We agree with the general principle articulated in People

v. Rolon (2008) 160 Cal.App.4th 1206 (Rolon) that, based on

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common law, “ ‘[a] parent has a legal duty to his or her minor

child to take every step reasonably necessary under the

circumstances in a given situation to exercise reasonable care

for the child, to protect the child from harm, and to obtain

reasonable medical attention for the child’ ” (id. at p. 1213) and

“aiding and abetting liability can be premised on a parent’s

failure to fulfill his or her common law duty to protect his or her

child from attack” (id. at p. 1219). Rolon, however, allowed for

murder liability based on a parental duty to act under the

natural and probable consequences doctrine. (Ibid.)

Specifically, Rolon provided: “[L]iability as an aider and abettor

requires that the parent, by his or her inaction, intend to aid the

perpetrator in commission of the crime, or a crime of which the

offense committed is a reasonable and probable outcome.” (Ibid.,

italics added.) Senate Bill No. 1437 (2017–2018 Reg. Sess.) has

since eliminated the natural and probable consequences

doctrine basis for aider and abettor murder liability “to more

equitably sentence offenders in accordance with their

involvement in homicides.” (Stats. 2018, ch. 1015, § 1.) Collins’s

conviction occurred in 2020, following the effective date of

Senate Bill No. 1437. To the extent Rolon permitted murder

liability based on a parental duty to act under the natural and

probable consequences doctrine, it is no longer good law and may

not control the outcome of this case.

Importantly, the parental duty to protect has bounds. To

confer criminal liability, parents must be aware that their duty

to protect has arisen. Parents are not required to “ ‘place

themselves in danger of death or great bodily harm in coming to

the aid of their children.’ ” (People v. Swanson-Birabent (2003)

114 Cal.App.4th 733, 745 (Swanson-Birabent), quoting Walden,

supra, 293 S.E.2d at p. 786.) What is reasonably possible for a

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parent to do to protect their child from harm or to stop an attack

depends on the circumstances of each individual situation.

(Ibid.) “[T]he relative size and strength of the parties involved

is relevant to a determination of what is reasonable.” (Rolon,

supra, 160 Cal.App.4th at p. 1220.) “In some cases, depending

upon the size and vitality of the parties involved, it might be

reasonable [for] a parent to physically intervene and restrain

the person attempting to injure the child. In other

circumstances, it will be reasonable for a parent to go for help or

to merely verbally protest an attack upon the child.” (Walden,

supra, 293 S.E.2d at p. 786.)

When a factfinder evaluates what reasonable steps were

available for the parent to protect their child, the relationship of

the direct perpetrator to the child will frequently be highly

relevant. Co-parents have their own duty to protect and their

own parental rights and obligations. When the abusive person

is the child’s co-parent, the parent shares the fundamental right

to the “companionship, care, custody, and management” of their

child. (In re B.G. (1974) 11 Cal.3d 679, 688; In re Carmaleta B.

(1978) 21 Cal.3d 482, 489 [“[p]arenting is a fundamental right”].)

A parent has rights and obligations relating to their child,

whereas a stranger has none (Troxel v. Granville (2000) 530 U.S.

57, 100–101 (conc. opn. of Kennedy, J.)), and a parent may not

unilaterally prevent the other parent’s contact with their child.

(Adoption of Kelsey S. (1992) 1 Cal.4th 816.) As such, a parent

may be more limited in what they can reasonably be expected to

do to protect their child from the other parent, as compared to a

non-parent.

Furthermore, there are frequently additional complexities

in considering what reasonable steps can be taken for an abused

parent to safely navigate around or leave an abusive co-parent.

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In the context of domestic violence, “ ‘[l]eaving an abusive

relationship or ending violence is a complex process.’ ” (In re I.B.

(2020) 53 Cal.App.5th 133, 156.) Importantly, a significant body

of social science evidence demonstrates that the risk of being

killed by one’s abuser increases significantly when a victim of

intimate partner violence attempts to leave their abuser.

(Comment, Battering Mothers for Their Abuser’s Crimes (2018)

52 U.S.F. L.Rev. 149, 152–153 (hereafter Comment); id. at

p. 152 [“a woman’s risk of being killed by her abuser increases

by seventy-five percent when she leaves her abuser”]; see

Jacobs, Requiring Battered Women Die: Murder Liability for

Mothers Under Failure to Protect Statutes (1998) 88 J. Crim. L.

& Criminology 579, 581 (hereafter Jacobs).) Again, parents

have no legal duty to place themselves in danger of death or

great bodily harm in coming to the aid of their children.

We further clarify today that, while criminal liability

based on the failure-to-protect doctrine does not necessarily

require that the parent be present for or actively participate in

the perpetrator’s acts, liability for murder on a failure-to-protect

theory is appropriately reserved for individuals who actually

know to a substantial degree of certainty that a life-endangering

act is occurring or is about to occur and failed to act in conscious

disregard for life.

As a general rule, malice is implied when the defendant

deliberately performs an act, knowing that their conduct

endangers the life of another, and acts with conscious disregard

for life. (E.g., Reyes, supra, 14 Cal.5th at p. 989.) When,

however, the defendant has not committed any “act” at all, but

instead is charged with murder based on failure to protect the

victim from acts committed by another, this inquiry necessarily

becomes more nuanced. As explained in greater detail below,

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existing case law addressing murder liability based on failure to

protect demonstrates the nature of the mens rea requirement in

this context, as compared to more typical implied malice murder

prosecutions in which the focus is on the defendant’s own

harmful actions that led to the victim’s death. Thus, courts have

found liability in failure-to-protect cases when the defendant

was present, and thus contemporaneously aware of the life-

endangering harm being inflicted on the victim, or knew, to

substantial certainty, that the life-endangering harm would

occur. (See post, pp. 22, 27–29.) These conclusions make sense.

A failure to act can imply malice only when the defendant has a

substantial degree of certainty that a third party is inflicting, or

will inflict, life-threatening harm; only then can it be said that

the defendant knows that failure to intercede, too, will endanger

the victim’s life, and that the defendant’s choice to do nothing

has been made with conscious disregard for that life.

The requirement of a sufficiently blameworthy mental

state is critical to prevent the failure-to-protect doctrine from

giving rise to a “broad, nonspecific” liability out of proportion to

the defendant’s culpability for harm they did not inflict,

stemming from risks they did not create. (People v. Ware (2022)

14 Cal.5th 151, 165 (Ware); see ibid. [describing the specific

intent required to support an unusual gang-related conspiracy

theory].) Thus, failure to protect homicide liability is limited to

situations wherein the parent knew of the perpetrator’s intent

to commit the charged crime because they saw it being carried

out, or because they had reason to know, to a substantial degree

of certainty, that it was occurring or would occur and failed to

act in conscious disregard for life. Again, this limitation is

reflected in the failure-to-protect cases, as discussed post.

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With these principles in mind, we turn to the issue of

whether sufficient evidence supports Collins’s second degree

murder conviction due to a failure to act.

B. DIRECT AIDER AND ABETTOR THEORY OF LIABILITY

We first consider whether the evidence is sufficient to

sustain Collins’s murder conviction based on a direct aider and

abettor theory of liability. Applying the standard we recently

clarified in Reyes, supra, 14 Cal.5th 981, we hold Collins did not

have the requisite mens rea to support direct aider and abettor

liability.

In Reyes, we explained what is required to establish

implied malice murder based on aiding and abetting liability.

“ ‘In the context of implied malice, the actus reus required of the

perpetrator is the commission of a life-endangering act. For the

direct aider and abettor, the actus reus includes whatever acts

constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider

and abettor must, by words or conduct, aid the commission of

the life-endangering act, not the result of that act. The mens

rea, which must be personally harbored by the direct aider and

abettor, is knowledge that the perpetrator intended to commit

the act, intent to aid the perpetrator in the commission of the

act, knowledge that the act is dangerous to human life, and

acting in conscious disregard for human life.’ ” (Reyes, supra,

14 Cal.5th at p. 991.) “The aider and abettor must know the

direct perpetrator intends to commit the murder or life-

endangering act and intend to aid the direct perpetrator in its

commission. It is this mental relationship to the perpetrator’s

acts that confers liability on the aider and abettor.” (People v.

Curiel (2023) 15 Cal.5th 433, 468.) “The requisite intent is a

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subjective one — the defendant must have ‘ “actually

appreciated the risk involved.” ’ ” (People v. Superior Court

(Valenzuela) (2021) 73 Cal.App.5th 485, 501.)

For murder liability to attach to a parent as an aider and

abettor based on their failure to protect, the parent must

knowingly fail to protect their child from the life-endangering

act for the purpose of facilitating that life-endangering act and

such failure to act must in fact assist in the commission of the

life-endangering act. (Rolon, supra, 160 Cal.App.4th at p. 1219;

ibid. [“a parent who knowingly fails to take reasonable steps to

stop an attack on his or her child may be criminally liable for

the attack if the purpose of nonintervention is to aid and abet

the attack”].) To establish that the parent’s failure to act in fact

assisted the commission of the life-threatening act, it must be

“ ‘shown that the defendant said or did something showing his

[or her] consent to the criminal purpose and contribution to its

execution.’ ” (Swanson-Birabent, supra, 114 Cal.App.4th at

p. 745.) It bears emphasizing that a parent’s “mere ‘presence at

the scene of a crime or failure to prevent its commission [is not]

sufficient to establish aiding and abetting.’ ” (People v.

Richardson (2008) 43 Cal.4th 959, 1024.)

1. Mens Rea as an Aider and Abettor

The evidence is insufficient to establish that Collins

harbored the requisite knowledge and intent to convict her of

implied malice murder as an aider and abettor.

There is no evidence that Collins knew with substantial

certainty that Norwood intended to commit the life-endangering

act — i.e., critically injure Abel, much less swing him by the leg

and throw him into a hard surface — before or during Norwood’s

commission of that act. Collins (and her grandmother) were

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under the impression that Norwood would be changing and

feeding Abel as he had done before. Collins and her

grandmother remained in the front room — where they had

been throughout the day — when the act occurred. At one point,

Collins heard a “bang” noise, which turned out to be Norwood’s

completed commission of the fatal act. Collins heard similar

noises when Norwood was alone with Abel on previous occasions

and afterward found Abel crying but not visibly injured. On this

day, Collins did not hear Abel cry after the noise. When

Norwood returned to the front room 15 to 20 minutes after the

bang, he told Collins and her grandmother that Abel did not

want his bottle and that Abel had gone back to sleep. Norwood

seemed antsy and left the house, while Collins remained in the

front room. When Collins next checked on Abel approximately

one hour later, Collins saw Abel was in a state of medical

emergency. She screamed and got medical attention

immediately. This evidence does not support a reasonable

inference that Collins knew Norwood intended to commit the

fatal act prior to or during its commission.

The Attorney General maintains the jury could reasonably

infer that Collins knew “at least as the attack happened” that

Norwood was attacking Abel on the morning of October 17 in a

way that was dangerous to human life. The Attorney General

bases this assertion on the evidence that Collins knew Norwood

had used methamphetamine that morning, knew that he was

angry enough to “break her cell phone,” “knew that Norwood’s

use of methamphetamine had caused him to commit specific acts

of abuse against Abel in the past,” and “heard thumping coming

from the bedroom consistent with sounds she had heard during

prior abusive incidents that were dangerous to Abel’s life.”

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First, there was not sufficient evidence that Collins knew

that Norwood was engaged in a life-endangering act against

Abel “as the attack happened.” Contrary to the Attorney

General’s suggestion, this is not a case where a parent fails to

act upon witnessing their child being attacked. For instance, in

Swanson-Birabent, supra, 114 Cal.App.4th 733, the victim’s

mother was convicted of lewd acts on a child based on aiding and

abetting her boyfriend’s commission of lewd acts on her five-

year-old daughter. (Id. at p. 737.) On two occasions, the mother

stood close to her boyfriend and daughter as she watched her

boyfriend digitally penetrate her daughter. (Ibid.) The

Swanson-Birabent court explained, “Instead of attempting to

stop [her boyfriend] by words or actions, [the victim’s mother]

stood by and watched as he committed a lewd act on the victim.

In failing to act, she both encouraged the victim to comply with

[her boyfriend] rather than resist, and she encouraged [her

boyfriend] to continue molesting the victim.” (Id. at p. 746.) The

court also concluded the mother aided her boyfriend since her

knowledge of her boyfriend’s actions and her intent “arose

sometime during the commission of the molestation.” (Id. at

p. 743.) Here, on the other hand, there is no evidence Collins

knew Norwood was committing a life-endangering act prior to

or during its commission. Unlike the defendant in Swanson-

Birabent, Collins was not in the same room where the act took

place and did not otherwise observe or participate in it. While

actual presence is not required to establish liability based on a

failure to protect, there was no evidence supporting a reasonable

inference Collins was aware of the attack as the attack

happened.

Second, the evidence that Collins knew Norwood used

methamphetamine six hours earlier and was angry with her

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that morning does not support a reasonable inference Collins

knew of Norwood’s intent to commit the life-endangering act

against Abel on the afternoon of October 17. The Attorney

General mischaracterizes the record by incorrectly stating

Norwood’s attack on Abel occurred in the morning; it actually

occurred in the afternoon. The fatal attack did not occur

immediately after Norwood used drugs and broke Collins’s

phone that morning. The attack occurred approximately six

hours later, sometime after 3:30 p.m. While there is evidence

Norwood was angry with Collins around 9:30 a.m., there is no

evidence he was still upset six hours later when he went to

change and feed Abel and ended up committing the life-

endangering act. The evidence of Norwood’s drug use and

emotional state that morning do not support a reasonable

inference that Collins knew that Norwood intended to fatally

injure Abel.

More generally, we find that Norwood’s anger towards

Collins and his property damage of her phone do not support a

reasonable inference that Collins knew of Norwood’s intent to

commit a life-endangering act against Abel on the afternoon of

October 17. We note, however, that even if Norwood’s anger

towards Collins could support an inference about Collins’s

knowledge of the danger Norwood posed to Abel, it would

presumably also raise an even stronger inference about the

danger Norwood posed to Collins. This would tend to undermine

liability for failure to carry out a duty to protect, rather than

support it. In the law generally, courts must consider evidence

of intimate partner violence as a mitigating circumstance or

evidence that otherwise diminishes culpability. (See, e.g., Pen.

Code, § 1170, subd. (b)(6)(C) [directing courts to impose the

lower term where the defendant was a victim of intimate

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partner violence]; id., subd. (d)(8)(C) [providing that a court may

resentence an individual to a lesser term based on their

experience as a victim of intimate partner violence]; Pen. Code,

§ 1172.1, subd. (a)(5) [directing courts, in evaluating whether to

recall a sentence, to consider whether intimate partner violence

was a “contributing factor” in the defendant’s commission of the

offense].) The law of failure-to-protect homicide, too, recognizes

that it is problematic to use the fact that an individual has been

abused by their partner to hold that individual criminally liable

for their partner’s conduct. It should be done, if at all, with

caution. In the context of aiding and abetting based on a

parent’s failure to act, the evidence of intimate partner violence

is most clearly pertinent to the inquiry of whether the parent

risked danger of death or great bodily harm in coming to the aid

of their children, which would preclude liability. (See Swanson-

Birabent, supra, 114 Cal.App.4th at p. 745.) And in this case, it

was Collins’s act of confronting Norwood about his drug use and

demanding he move out — steps that were taken to protect

herself and Abel — that triggered Norwood’s angry outburst

towards Collins and his damage to her phone. In all events,

Norwood’s volatility towards Collins and damage to her property

failed to establish Collins knew Norwood would commit a life-

endangering act against Abel later that day.

Third, the evidence of Collins’s knowledge of Norwood’s

previous abuse of Abel does not support a reasonable inference

that Collins knew to a substantial degree of certainty that

Norwood intended to commit life-endangering abuse against

Abel on the afternoon of October 17. Although Collins testified

that she had lied to detectives about witnessing dangerous

abuse, the jury reasonably could have determined Collins indeed

knew that Norwood was abusing Abel in a manner consistent

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with her statements to the detectives and the medical

testimony.6 Imaging revealed serious injuries to Abel that

predated his fatal injury and were consistent with Collins’s

description of the abuse to the detectives: at least eight

fractures to Abel’s ribs, several of which indicated “extreme

chest compressions” and “an extremely violent shaking process”;

multiple smaller fractures to Abel’s arms and legs; and retinal

hemorrhages too numerous to count that were associated with

violently shaking Abel. While the evidence of Norwood’s past

abuse is distressing, what Norwood did the day he killed Abel —

swinging him by the leg and slamming his head into the wall or

floor — was different in kind from any of the prior acts of abuse

Collins had witnessed. Viewed in the light most favorable to the

judgment, the evidence of Collins’s knowledge regarding

Norwood’s past acts of abuse does not support a reasonable

inference that Collins knew Norwood intended to commit life-

endangering abuse. There was certainly a reasonable inference

that Collins knew Norwood’s care posed a high risk of serious

injury to their child. Such knowledge might be sufficient to find

Collins liable for a different crime, such as, for instance, felony

child endangerment — an offense “punish[able] by

imprisonment in a county jail not exceeding one year, or in the

state prison for two, four, or six years” (Pen. Code, § 273a, subd.

(a)). But this knowledge is insufficient to establish Collins is

liable for implied malice murder.

6

The dissent claims we are “credit[ing] Collins’s testimony

and indulg[ing] in inferences favorable to her.” (Dis. opn., post,

at p. 49.) However, we premise our holding on the fact that the

jury reasonably found, contrary to Collins’s testimony, that she

witnessed the serious abuse as described to the detectives

during her second interview.

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While any physical abuse of an infant is cause for

significant concern, there is no evidence Collins knew, based on

the past acts of abuse, that Norwood intended to inflict life-

threatening harm on Abel. Importantly, Collins (and her

grandmother) observed no signs of physical injuries prior to the

fatal act. Medical testimony established that the fatal act

caused injuries — including external ones to Abel’s head and

leg — that were distinct in nature from injuries caused by

Norwood’s past acts of abuse — nonfatal internal injuries,

mainly rib fractures. When Collins was concerned about Abel’s

apparent gastrointestinal discomfort, she sought immediate

medical attention. No medical personnel observed any signs of

trauma or physical abuse at Abel’s medical visits, including at

the check-up that occurred the day before the fatal injury. At

that visit, the nurse saw no signs of bruising, trauma, cuts, or

scrapes, and she described Abel as appearing “like a normal two-

month baby.”7 Abel’s injuries were not visible to the responding

7

The dissent rejects the evidence relating to the physical

examination based on its speculation that the jury found this

testimony “plainly self-serving, since the nurse could be subject

to discipline or criticism for failing to . . . notice an injury on

Abel.” (Dis. opn., post, at p. 30, fn. 6.) “It is well established

that ‘[w]hether a particular inference can be drawn from certain

evidence is a question of law, but whether the inference shall be

drawn, in any given case, is a question of fact.’ ” (Willis v.

Gordon (1978) 20 Cal.3d 629, 633.) As a matter of law, the

inference that the dissent appears to be drawing — that the

nurse observed injuries indicative of abuse but did not include

them in her report and that Collins was informed of or otherwise

aware of such injuries — cannot be drawn. “[W]e cannot . . .

venture beyond the evidence presented at trial, and may

consider only those inferences that are reasonably supported by

the record.” (Ware, supra, 14 Cal.5th at p. 167.) There is simply

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emergency technician and only became apparent once he was at

the hospital. In light of this evidence, there is no reasonable

inference that Collins knew Norwood had the intent to commit

the fatal act, much less aid him in doing so.8

The facts in People v. Werntz (2023) 90 Cal.App.5th 1093

and Stanciel, supra, 606 N.E.2d 1201 provide useful

comparisons to the facts of this case. In both cases, the parents

had a much higher involvement than Collins in the offense of

which they were convicted, and both cases generally

demonstrate knowledge with a substantial degree of certainty

that the perpetrator intended to commit the life-endangering

act. In Werntz, the mother was held liable as an aider and

abettor for implied malice murder for the death of her ten-week-

old daughter. (Id. at pp. 1099–1100.) The mother’s conviction

was based, in part, on her failure to seek medical attention for a

no evidence in the record the nurse abrogated her duties while

repeatedly examining Abel and lied while testifying, much less

that Collins was made aware of injuries that were not included

in the report. This inference is improperly premised on mere

speculation and guess work. (Ibid. [“ ‘ “[A] reasonable inference

. . . ‘may not be based on suspicion alone, or on imagination,

speculation, supposition, surmise, conjecture, or guess

work’ ” ’ ”]; see Kunkin, supra, 9 Cal.3d at p. 250; Anderson,

supra, 70 Cal.2d at p. 24.)

8

The dissent reasons that because we can reasonably infer

Collins knew that Norwood seriously injured Abel, we can also

reasonably infer she knew that Norwood’s care was life

endangering. (Dis. opn., post, at pp. 4, 27–28 & fn. 4.) But this

reasoning reveals how the now-invalid natural and probable

consequences doctrine undergirds the dissent’s position.

According to the dissent’s logic, if the jury reasonably found

Collins knew Norwood committed felony child abuse, it

effectively could impute malice. Murder liability now requires

more. (See Senate Bill No. 1437 (2017–2018 Reg. Sess.).)

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serious leg injury the perpetrator inflicted on her daughter

which would have caused “ ‘swelling, redness, [and] puffiness’ ”

that “ ‘would have been “obvious” to the naked eye.’ ” (Id. at

pp. 1100, 1103.) It was also based on Werntz’s knowledge that

the perpetrator killed Werntz’s first child by “brutal means” (id.

at p. 1117) and by her participation in preventing authorities

from ascertaining the cause of her daughter’s death. (See id. at

pp. 1116–1118.) Here, prior to the fatal act, Collins did not

observe any physical injuries, Collins made various efforts to

secure appropriate medical attention for Abel, there was no

evidence Norwood had brutalized other children, and Collins

obtained medical care immediately upon observing Abel was in

a state of medical emergency.

Stanciel involved two consolidated cases. (Stanciel, 606

N.E.2d at p. 1209.) In one of the cases, the mother was found

liable as an aider and abettor for implied malice murder based,

in part, on her knowledge of her three-year-old daughter’s

extensive, serious injuries and because she herself had left bite

marks on her daughter. (Id. at p. 1205.) In the other case, the

mother was found liable as an aider and abettor for implied

malice murder because she knew of her 20-month-old’s

extensive and serious injuries — including multiple oozing

burns on her body and over 45 bruises. (Id. at pp. 1206–1207.)

Additionally, the defendant in that case was overheard telling

her boyfriend, who killed her child, “ ‘I told you not to get so

angry, I told [you] this would happen.’ ” (Id. at p. 1208.) She

also shrugged her shoulders when told her son died and acted

like his death was inconsequential. (Ibid.) Unlike the

defendants in Stanciel, Collins had no such knowledge or

awareness of Abel’s injuries, and there was no evidence

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supporting a reasonable inference that Collins inflicted any

injuries herself.

Finally, there is no evidence supporting a reasonable

inference that Collins intended to aid Norwood in his

commission of the life-endangering act. We find Glenn v. State

(Ga. 2004) 602 S.E.2d 577 (Glenn) instructive. In that case, the

mother was convicted of various charges — including felony

murder — for the death of her three-week-old daughter. (Id. at

p. 578.) Several days before the infant’s death, the mother

noticed a serious injury to her daughter’s leg. (Ibid.) After

waiting, the mother eventually took her daughter to a hospital,

and medical staff determined the injury was caused by the

infant’s leg being forcefully twisted or shaken. (Ibid.) There

was evidence the mother had been informed that her boyfriend

could have caused the injury and that he had committed prior

acts of abuse against other children. (Id. at p. 580.) Shortly

thereafter, the mother left her infant in her boyfriend’s care as

the mother slept. (Id. at p. 579.) The mother awoke to her

boyfriend stating her infant was having trouble breathing.

(Ibid.) The infant was taken to the hospital where it was later

determined she had died from blunt force trauma to the head.

(Ibid.)

In reversing various convictions relating to the child’s

death, the Georgia Supreme Court held there was insufficient

evidence that the mother intentionally aided and abetted her

boyfriend’s acts that caused her daughter’s head injuries.

(Glenn, supra, 602 S.E.2d at p. 580.) The court reasoned the

prosecutor did not dispel the theory that the mother was

sleeping when her boyfriend committed the fatal abuse against

her daughter. (Ibid.) The court stressed that intentional aiding

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and abetting was required rather than inadvertent or incidental

contribution to the offenses. (Ibid.)

Here, the prosecution similarly failed to carry its burden

in establishing that Collins intentionally aided and abetted

Norwood’s commission of the life-endangering act. The Attorney

General argues Collins’s intent to aid Norwood can be inferred

based on her protecting Norwood during the investigation. It is

true that Collins protected Norwood during her first interview

with the police. She initially claimed the hypodermic needle and

drugs were hers when they were Norwood’s. She suggested, at

Norwood’s direction, that her grandmother may have caused

Abel’s injuries. She also stated that Norwood did not abuse her.

During her second interview the next day, Collins disclosed

more information relating to Norwood’s prior acts of abuse and

his behavior the day of the murder in an effort to help the

investigation. Collins’s behavior during the first interview was

indeed questionable, but given its nature and the point at which

it occurred, it does not provide a reasonable inference that

Collins intended to aid and abet Norwood’s life-endangering act

prior to or during the commission of that act.

Lastly, we emphasize it is improper to infer a parent’s

knowledge that another person intends to commit a life-

endangering act against their child based on gendered

expectations of parenthood. Here, police questioned Collins

about her “mother intuition.” They asked about her “gut” as a

mother and remarked how she was “built” with a maternal

instinct to protect her child and know what was happening to

Abel without direct observation. Assumptions about what

Collins should have done based on outmoded, gendered notions

of a mother’s — as compared to a father’s — role in caring for a

child are not proper in determining a mother’s liability for

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murder based on a failure to protect. (See Anthony, The Law of

Motherhood in the Gender-Dependent Application of Criminal

Responsibility for Failing to Protect Children (2022) 24 Geo. J.

Gender & L. 1, 16 [explaining that, based on gender stereotypes,

mothers are often held to a higher standard than fathers to

protect their children]; Comment, supra, 52 U.S.F. L.Rev. at

p. 152.) While the statements noted above occurred during the

police interrogation, prosecutors and courts must take care to

ensure that this type of gender bias does not infect our criminal

justice system.

2. Actus Reus as an Aider and Abettor

Because we hold there was insufficient evidence that

Collins harbored the requisite mens rea, we need not determine

whether Collins committed an omission that was sufficient to

establish the actus reus required for aiding and abetting implied

malice murder. However, in light of the arguments in the trial

court and on appeal, we clarify several legal principles regarding

the requisite actus reus for second degree murder based on one’s

failure to act. The principles discussed herein pertain to failure-

to-protect criminal prosecutions — a context distinct from

dependency or family law.

In the context of aiding and abetting implied malice

murder based on a parent’s failure to protect, the actus reus

could be based on the parent’s failure to take reasonable steps

necessary to either protect their child from a known, imminent

life-endangering act or to stop a life-endangering attack on their

child that they know is underway. To meet their burden in

demonstrating the steps are reasonable ones, the prosecution

must prove that any steps the parent failed to take carry a high

probability of preventing or stopping the life-endangering act.

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Reasonably possible steps are not theoretical or model ideas of

how a parent could have prevented the life-endangering act from

occurring. They will vary from case to case and must be

informed by the context and circumstances of the particular

situation.

In arguing Collins failed to take reasonable steps to

protect Abel, the prosecution asserted Collins could have left

Norwood by moving out of her grandmother’s home and living

with other family, could have called the police, or could have

reported Norwood to Abel’s examining physician. However, as

Collins notes, this reasoning effectively resurrects the natural

and probable consequences theory of liability by permitting

liability for murder based on a parent’s failure to protect their

child from felony child abuse. Here, the prosecutor’s suggestions

might be pertinent to a claim that Collins acted with criminal

negligence by willfully permitting the abuse of Abel that she

knew or should have known was occurring (see People v. Valdez

(2002) 27 Cal.4th 778 (Valdez)), but they do not support a claim

that Collins failed to take reasonable steps to protect Abel from

the life-endangering act.

Contrary to failing to act in response to Norwood’s

previous acts of abuse, there was evidence Collins did take

affirmative and reasonable steps to protect Abel based on the

information known to her and in light of her physical state.

Collins proactively took Abel to wellness checks and secured

medical care for him as needed. As to Norwood’s prior abuse of

Abel, Collins either physically took Abel away from Norwood or

would tell Norwood to stop being physical with Abel when

Collins thought Norwood was being too rough with him. On

other occasions, Collins told Norwood to leave. On the morning

of the life-endangering act, Collins and Norwood got into an

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argument about Norwood’s drug use and Collins demanded that

he move out. Collins took these steps even while in a

compromised physical state and reliant upon Norwood, as Abel’s

father, for practical and financial support.

In evaluating what steps Collins reasonably could have

taken to protect Abel, the fact that Norwood was Abel’s father

was a highly relevant consideration. As discussed supra,

Norwood had rights and obligations concerning Abel, and the

steps Collins would have needed to take to remove Abel from

Norwood’s care are qualitatively different from those to remove

her child from a non-parent’s care. Those steps were not fully

appreciated or considered by the prosecution in this case.

As noted, there are additional complexities in considering

what reasonable steps can be taken for an abused parent to

safely navigate around or leave an abusive co-parent. Here, it

was undisputed that Norwood physically and financially abused

Collins and threatened to kill her if she called the police, and

Collins knew Norwood had previously been convicted of

domestic violence. Indeed, the prosecutor relied on this evidence

to show Collins knew Norwood posed a lethal threat to Abel and

should have left Norwood to protect Abel. But, as noted, the risk

of being killed by one’s abuser increases significantly when a

victim of intimate partner violence attempts to leave their

abuser. (Comment, supra, 52 U.S.F. L.Rev. at p. 152 [“a

woman’s risk of being killed by her abuser increases by seventy-

five percent when she leaves her abuser”]; see Jacobs, supra, 88

J. Crim. L. & Criminology at p. 581.) This risk of femicide is

heightened for postpartum women, such as Collins. (See

generally Campbell, Matoff-Stepp, Velez, Hunter Cox &

Laughon, Pregnancy-Associated Deaths from Homicide, Suicide,

and Drug Overdose: Review of Research and the Intersection

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with Intimate Partner Violence (2021) 30 J. Women’s Health

236.) And even short of femicide, leaving a relationship with a

child carries a risk of being prosecuted for parental kidnapping.

(See generally Cross, Criminalizing Battered Mothers (2018)

2018 Utah L.Rev. 259; id. at p. 259 [“Not only are survivors with

children pressured to leave, they are punished when they

stay. . . . Yet a survivor who flees with her children is not

immune to these same consequences: if she leaves in a manner

that is not state sanctioned, she may be punished criminally or

civilly for kidnapping her children, regardless of the violence she

was experiencing at home”]; id. at p. 262 [“mothers are more

likely to be convicted and incarcerated for parental kidnapping

than fathers”].)

Instead of recognizing these unfortunate realities of

domestic violence, the Attorney General focuses on the fact that

Collins did not expressly state that she was afraid to leave

Norwood (although she did say she feared him and was afraid of

confronting him) and asserting that “Collins prioritized her

relationship with Norwood over the safety of her son.” But

again, the prosecution needed to prove there were steps Collins

could have safely taken to prohibit Norwood from caring for his

son in light of the risk leaving or confronting him (which Collins

had done that very morning) posed to Collins and to Abel.

The Attorney General stresses that Collins admitted she

should have done a better job in protecting Abel. To be sure,

Collins expressed remorse in not taking more immediate and

effective action to prevent Abel’s death. We would expect any

reasonable, caring parent to express remorse that they were

unable to prevent their child’s death — no matter the cause. At

most, Collins’s sentiments support a reasonable inference that

she recognized, in hindsight, she did not behave as a reasonable

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Opinion of the Court by Evans, J.

parent. This inference supports a finding that Collins was

criminally negligent, as required for felony child endangerment

(Valdez, supra, 27 Cal.4th at pp. 789–790), but it fails to suffice

for a finding she harbored malice.

C. DIRECT PERPETRATOR THEORY OF LIABILITY

We next address simple implied malice murder. Murder

is committed with implied malice when “the killing is

proximately caused by ‘ “an act, the natural consequences of

which are dangerous to life, which act was deliberately

performed by a person who knows that his conduct endangers

the life of another and who acts with conscious disregard for

life.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 143.) To

sustain Collins’s verdict of second degree murder based on a

direct perpetrator theory of liability, there must be sufficient

evidence that Collins’s failure to protect Abel involved a “ ‘high

degree of probability that it will result in death’ ” (id. at p. 156),

that Collins knew her failure to act endangered human life and

acted with conscious disregard for life, and that her failure to

act proximately caused Abel’s death. For malice to be implied,

a defendant must be subjectively aware that their acts or

omissions endangered the life of their child.

It is true that a reasonable jury could infer that Collins

knew to a substantial degree of certainty that Norwood might

commit an act of serious, but nonlethal, abuse based on her

knowledge of Norwood’s state and having witnessed his past

acts of abuse. For the reasons discussed above, however, there

was insufficient evidence that Collins subjectively appreciated

her failure to act was life endangering, because she had no

reason to know to any substantial degree of certainty that

Norwood would commit a life-endangering act while she

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Opinion of the Court by Evans, J.

remained on the couch.9 The abuse Collins witnessed was

different in kind from Norwood’s fatal act — an act that caused

visible external injuries. As discussed above, based upon a

physical examination the day before the murder, Abel appeared

to be a normal two-month-old. There is no evidence supporting

a reasonable inference that Collins was actually aware that her

failure to prevent Norwood from going into the back bedroom to

change and feed Abel on the afternoon of October 17 endangered

Abel’s life or that her act of remaining on the couch was in

conscious disregard for his life.10

9

The dissent mischaracterizes our analysis as “depart[ing]

from the established implied malice standard.” (Dis. opn., post,

at p. 23.) The articulation of the requisite mental state — that

is, knowing to a substantial degree of certainty that another’s

life-endangering act is occurring or is about to occur and failing

to take reasonable steps to intervene in the face of such an act —

reflects the knowledge and conscious disregard for human life

requirements in failure-to-protect cases when the defendant has

not actually done anything themself to affirmatively endanger a

child in their care. We are applying decades of precedent while

clarifying the applicable legal principles in the distinct context

of a parental failure-to-protect case. In clarifying the governing

law and its application, we in no way call into question

established principles of substantial evidence review.

10

The dissent asserts that “[w]ith a history of abuse severe

enough to cause serious injury, a jury could readily infer that

allowing Norwood to care for Abel risked life-threatening abuse

as well.” (Dis opn., post, at p. 26.) The dissent erroneously

concludes “a reasonable jury could find that Collins knew

Norwood’s care endangered Abel’s life based on the facts known

to Collins prior to that final act,” “[r]egardless of the character

of Norwood’s final act of abuse.” (Id. at p. 29.)

The consequences of the dissent’s reasoning are far

reaching and without precedent. In its view, a parent (or any

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Opinion of the Court by Evans, J.

The facts of this case stand in stark contrast to other cases

in which a parent knew of the danger posed to their child’s life

and failed to act due to a lack of concern as to whether the victim

lived or died. For example, in Burden, supra, 72 Cal.App.3d 603,

the Court of Appeal affirmed a father’s murder conviction under

a direct perpetrator theory based on his failure to intervene to

protect his five-month-old child. The father was aware the

mother was starving their child, the child was clearly

malnourished, and the father admitted he could have done

other individual with a duty to protect a child) can be held liable

for murder if they have witnessed a past act of child abuse and

the child is later killed. As relevant here, the dissent fails to

appreciate two key facts. First, contrary to the dissent’s claims,

the record does not support a conclusion that Collins was aware

that Norwood had caused serious injury to Abel prior to the fatal

act. As discussed, the trial evidence showed that, despite three

separate medical visits, a trained medical professional did not

observe or diagnose Abel with any injuries prior to the fatal act.

Second, and related, the final act of abuse was described by the

forensic pathologist as “a markedly violent event” and was

distinct in kind from the prior acts of abuse of which the jury

could reasonably infer Collins witnessed (i.e., bouncing Abel too

hard, covering Abel’s mouth to muffle his crying, squeezing him

too tight, carelessly bumping his head into furniture, pushing

down on his ribcage “probably hard enough to break a rib,” and

rolling him over by his leg).

And while there may be instances in which a parent does

not fulfill their duty to protect by “allowing” an abusive coparent

to be alone with the child, we reiterate that gendered

expectations of parenting where mothers are responsible for the

care of their children and fathers are not, have no place in that

assessment. Here, Norwood told Collins he was going to feed

and change Abel, and Norwood, as Abel’s parent, had an

independent responsibility to protect and care for Abel,

including ensuring that he was clean and fed. (See ante, pp. 16,

30, 33.)

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Opinion of the Court by Evans, J.

something if he “ ‘had really wanted to’ ” but did not do anything

because he “ ‘just didn’t care.’ ” (Id. at p. 620.) The Burden court

determined the father’s awareness of the danger to his child and

his indifference to his child’s state were sufficient to establish

implied malice. In contrast, Collins took affirmative acts to

protect and care for Abel, including taking him to various

doctor’s appointments, taking Abel away from Norwood when

she believed Norwood was being too rough, and telling Norwood

to move out the very morning that Abel was killed. Additionally,

after finding Abel in a state of medical emergency, Collins

became hysterical and sought medical attention for him

immediately. There was no evidence Collins was subjectively

aware of the danger posed to her child’s life and failed to act due

to a lack of concern as to whether Abel lived or died.

Because there was insufficient evidence of mens rea under

a direct perpetrator theory of liability, we need not address the

remaining elements of proximate causation and the objective

“ ‘ “high degree of probability that it will result in death” ’ ”

element. (Reyes, supra, 14 Cal.5th at p. 989.)

III. DISPOSITION

In sum, insufficient evidence supported Collins’s second

degree murder conviction for the death of her son under either

a direct aiding and abetting theory or a direct perpetrator

theory. Accordingly, we reverse the judgment of the Court of

Appeal and remand with instructions to direct the trial court to

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Opinion of the Court by Evans, J.

vacate Collins’s conviction for second degree murder and

resentence her in accordance with the decision herein.

EVANS, J.

We Concur:

LIU, J.

GROBAN, J.

JENKINS, J.

39

PEOPLE v. COLLINS

S279737

Concurring Opinion by Justice Liu

A baby girl, D.M., was born on November 5, 1985 to Loreli

and Steven Michael. (Michael v. State (Alaska Ct.App. 1988)

767 P.2d 193, 196 (Michael), revd. on other grounds (Alaska

1991) 805 P.2d 371.) Steven was in the Army and, starting in

December, “was out of town on field maneuvers for about two

weeks.” (Id. at p. 196.) From his return in mid-December until

the day D.M. was taken to the hospital, Steven “would on some

days spend long hours on duty, but on other days would spend a

substantial amount of time at home.” (Ibid.)

On January 5, 1986, the Michaels brought two-month-old

D.M. to the emergency room with a swollen leg. (Michael, supra,

767 P.2d at p. 196.) D.M. was diagnosed with “multiple

fractures,” including “both femurs . . . , the upper and lower

bones of both arms, and at least nine ribs,” as well as “a bruise

on the back of her left shoulder,” “two burns on her left forearm,”

and “broken blood vessels on her face and neck.” (Ibid.) Steven

and Loreli were each charged with thirteen counts of first degree

assault. (Id. at p. 195.)

Following a bench trial, the trial court concluded that

Loreli “had personally inflicted D.M.’s injuries” and sentenced

her to “ten years with three years suspended” on three counts of

first degree assault, to be served concurrently. (Michael, supra,

767 P.2d at p. 195.) The trial court found Steven guilty of two

counts of second degree assault, “a lesser-included offense,”

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Liu, J., concurring

noting that he “had not inflicted the injuries on his daughter and

had not acted as an accomplice to [his wife’s] infliction of D.M.’s

injuries.” (Id. at p. 196.) The court sentenced him to four years

in prison for breaching his parental duty to assist D.M. “when

he knew that she was physically mistreated and abused by his

wife.” (Id. at pp. 196–197.)

Although the trial court found it was Loreli, not Steven,

who “personally assaulted D.M.” (Michael, supra, 767 P.2d at

p. 202), the evidence nonetheless appeared sufficient to convict

Steven of first degree assault on the theory that he “knowingly

engage[d] in conduct that result[ed] in serious physical injury to

another under circumstances manifesting extreme indifference

to the value of human life.” (Alaska Stat., § 11.41.200(a)(3); see

Michael, at p. 195.) The trial court found that “Michael knew of

the need to take action to protect his daughter” (Michael, at

p. 200); his failure to protect D.M. was “conduct” (id. at pp. 197,

200); D.M.’s serious injuries were “a result of” his conduct (id. at

p. 197); and his failure to protect a two-month-old infant from

repeated abuse resulting in thirteen broken bones, a bruise,

burns, and broken blood vessels would reasonably seem to

“manifest[] extreme indifference to the value of human life”

(Alaska Stat., § 11.41.200(a)(3)). (See Michael, at p. 203

[“Taking the evidence in the light most favorable to the state,

someone who was living in the same household as D.M. would

have known well before D.M. was taken to the hospital . . . that

D.M. had been severely injured on previous occasions. In

addition, Michael’s statements and actions after his daughter

went to the hospital support the inference that he knew that his

wife was deliberately injuring D.M.”].)

It is understandable that the trial court in Michael

tempered the father’s punishment to account for his absences

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PEOPLE v. COLLINS

Liu, J., concurring

and lack of personal involvement in the abuse. (Michael, supra,

767 P.2d at pp. 195–196, 201.) Yet this impulse to moderate

punishment for harms that a parent did not personally inflict is

not extended equally to mothers. (Anthony, The Law of

Motherhood in the Gender-Dependent Application of Criminal

Responsibility for Failing to Protect Children (2022) 24 Geo. J.

Gender & L. 1, 3 (Anthony).) “Broad investigations of cases

involving prosecution of the non-abusing parent under failure to

protect laws reveal[] that . . . the prosecuted parent is nearly

always the mother.” (Id. at p. 13.) And even in the “uncommon

instances where fathers are charged for failure to protect, they

are more likely to be charged with lesser offenses.” (Id. at p. 16;

see Purvis, The Rules of Maternity (2017) 84 Tenn. L.Rev. 367,

404 [noting the “almost complete absence of fathers charged

with a failure to protect their child” even though “by raw

numbers alone, parents witnessing abuse by their co-parent . . .

are fathers, and not mothers”].) Michael involved the conviction

of a father on a lesser charge; we do not know how many fathers

who witness abuse of their child are never convicted or charged

at all.

I am aware of one statewide study of the disparate

application of failure-to-protect laws, and that study shows

stark gender disparities. (ACLU Oklahoma, Oklahoma’s

Failure to Protect Law and the Criminalization of Motherhood

(2020) <https://www.acluok.org/en/publications/oklahomas-

failure-protect-law-and-criminalization-motherhood> [as of

Jan. 6, 2025] (ACLU Oklahoma); all Internet citations in this

opinion are archived by year, docket number, and case name at

<https://courts.ca.gov/opinions/cited-supreme-court-opinions>.)

Oklahoma enforces failure-to-protect liability by statute: “Any

person responsible for the health, safety or welfare of a child

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PEOPLE v. COLLINS

Liu, J., concurring

who shall willfully or maliciously engage in enabling child

abuse” may be convicted and sentenced to a term up to life

imprisonment. (Okla. Stat. tit. 21, § 843.5(B).) The phrase

“ ‘enabling child abuse’ ” means “failure to protect from harm or

threatened harm to the health, safety or welfare of a child under

eighteen . . . years of age by a person responsible for a child’s

health, safety or welfare.” (Id., § 843.5(O)(1)(a).) The study

found that between 2009 and 2018, “women make up 93 percent

of people convicted of failure to protect in Oklahoma. In the

three percent of cases where a man is convicted of failure to

protect, so was their female partner, because the prosecution

simply did not identify the person committing the abuse and

charged both caregivers with failure to protect. There were zero

cases where a woman was convicted of child abuse and her male

partner was convicted of failure to protect.” (ACLU Oklahoma.)

In addition, one in four women convicted under the failure-to-

protect statute received a longer sentence than the person who

actually committed the abuse. (Ibid.) And at least half of the

women convicted under the statute were themselves abused by

the man harming their children. (Ibid.)

I do not know of any comparable statewide data on the

prosecution of parents in California under failure-to-protect

theories. But a recent survey of 649 women representing 58.2

percent of women incarcerated in California for murder or

manslaughter suggests that California is not immune from such

gender disparities. (Stanford Criminal Justice Center, Fatal

Peril: Unheard Stories From the IPV-to-Prison Pipeline and

Other Voices Touched by Violence (2024) <https://

law.stanford.edu/wp-content/uploads/2024/08/Fatal-Peril-

Final.pdf> [as of Jan. 6, 2025] (Fatal Peril).) One respondent

was away at work when her child was killed by an abusive male

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PEOPLE v. COLLINS

Liu, J., concurring

partner. (Id. at p. 106.) It does not appear she received leniency

on account of her absence and lack of involvement, as the father

did in Michael; she is presently serving a life sentence. (Ibid.)

In her words: “My partner was really abusive and controlling.

He would keep my son hostage in order to control me, besides

threatening me and hurting me. . . . The abuse increased a lot

during a small period of time until the fatal day that he was so

high he killed my [child] while I was working. . . . My [child]

was [a toddler] and I [am] the one receiving a life sentence for

what he did.” (Ibid.) Another respondent whose male partner

killed her daughter reported that the man is now free after being

convicted as “an accessory after the fact” while she is serving a

“lengthy indeterminate sentence.” (Id. at p. 105.) Many

respondents were themselves victims of their partner’s violence;

two women reported having been beaten unconscious when their

children were dealt the fatal blow. (Id. at pp. 106–107.)

I join today’s opinion finding insufficient evidence to

convict defendant Brittney Collins of second degree murder for

the death of her son Abel at the hands of his father. (Maj. opn.,

ante, at p. 1.) I also agree that “a parent’s failure to act can

constitute an affirmative act for the purposes of criminal

liability in some situations.” (Id. at p. 14.) I write 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, our

society valorizes motherhood, but it also comes down hard on

“bad mothers.” An awareness of this potential bias, as with any

bias, properly informs our review of this case.

Much of the disagreement over this case turns on views

about what a “reasonable parent” in Collins’s situation would

have done. (Dis. opn., post, at pp. 3, 41–43.) Although the

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PEOPLE v. COLLINS

Liu, J., concurring

“reasonable parent” standard is the law, it is vital to

acknowledge that the concept is highly susceptible to gender and

class biases. (See Anthony, supra, 24 Geo. J. Gender & L. at p. 3

[“[I]n practice, ‘reasonable’ appears to mean something quite

different for mothers than it does for fathers.”].) For example,

do unwarranted expectations of a mother’s “intuitive”

awareness of danger to her child inform the analysis of Collins’s

knowledge of Abel’s risk of death? (See Trozzo, Victim Blaming:

Failure to Protect Laws as a Legislative Attack on Mothers (2021)

23 Geo. J. Gender & L. 79, 99 [“Mothers are presumed to

intuitively know about abuse of their children, even if they never

witness the abuse.”].) The risk of such bias is especially

significant when it comes to children suffering harm from male

partners, as in this case. (See Anthony, at p. 22 [“[T]he

avoidance of risk to a mother’s children is an element of

idealized motherhood, where the responsibility is not only to

care for children, but also to ‘avoid and manage male violence.’

When harm befalls children at the hands of men, it signifies a

failure of the mother to predict, manage, and stop that

violence.”], fn. omitted.) These gender biases are not theoretical;

in this case, detectives repeatedly asked Collins what her

“ ‘mother intuition [sic]’ ” and “ ‘gut as a mother’ ” were telling

her about what happened to Abel. (Maj. opn., ante, at pp. 5–6.)

Also, one might question whether inferences of Collins’s

culpability are refracted through a lens that sees Abel’s mother

as his “natural” caregiver. (See Nevada Dept. of Human

Resources v. Hibbs (2003) 538 U.S. 721, 736 [discussing

“mutually reinforcing stereotypes” that women play “the role of

primary family caregiver” while men “lack . . . domestic

responsibilities”]; Panko, Legal Backlash: The Expanding

Liability of Women Who Fail to Protect Their Children (1995) 6

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PEOPLE v. COLLINS

Liu, J., concurring

Hastings Women’s L.J. 67, 75 [“Within the nuclear family, it is

still considered natural that mothers have a special bond with

their children while fathers remain distant . . . .”], fn. omitted;

Ginsburg, Constitutional Adjudication in the United States as a

Means of Advancing the Equal Stature of Men and Women

Under the Law (1997) 26 Hofstra L.Rev. 263, 266, 270.) It is

difficult to imagine framing Collins as “allowing Norwood to care

for Abel” (dis. opn., post, at p. 4) had the parents’ genders been

reversed; fathers are not said to “allow” their children to be

cared for by their mothers. (See, e.g., Michael, supra, 767 P.2d

193 [not once describing the circumstances in terms of the father

“allowing” his wife to care for their daughter, even though the

father knew his wife had been severely abusing her].)

The risk of bias is that Norwood’s care for his son is viewed

as a replacement for caregiving that Collins should have been

doing. (See Garcia, The Gender Bind: Men as Inauthentic

Caregivers (2013) 20 Duke J. Gender L. & Policy 1, 4 [“Often

society sees men as ‘babysitting’ their own children and men

must prove that they are actually providing care to be labeled

caregivers. Otherwise, their care only replaces the care that the

mother would otherwise be giving.”], fn. omitted.) This view was

expressed by the detectives who told Collins: “ ‘[M]om’s the

person that watches the kid. Mom’s the person that takes care

of the baby. Mom’s the person that protects their baby. Right?’ ”

(Maj. opn., ante, at p. 5.)

Further, we might ask what socioeconomic assumptions

inform analysis of the options reasonably available to Collins to

remove Abel from his father. The dissenting opinion says the

jury could have found that “a reasonable parent could and would

have” forced Norwood to leave or “could and would have” left

with Abel to escape Norwood. (Dis. opn., post, at pp. 42–43.)

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PEOPLE v. COLLINS

Liu, J., concurring

The dissent acknowledges that Collins would have also needed

to relocate her grandmother and says there was evidence that

her grandmother could have stayed with family or friends before

Abel’s death. (Id. at p. 43.)

Would it have been reasonable for the jury to have drawn

these conclusions? In assessing the sufficiency of the evidence,

I see nothing speculative about considering the reality that

“financial dependence on a partner is a barrier for women of

lower socioeconomic status who may not have the means to

leave.” (Fatal Peril, supra, at p. 26; see Buel, Fifty Obstacles to

Leaving, a.k.a., Why Abuse Victims Stay (1999) 28 Colo. L. 19,

20 (Buel) [“the number one reason cited [by victims of domestic

violence] for returning to the batterer [was] financial despair”

because the women were unable to provide for themselves or

their children without the batterer’s assistance].) Again, the

concern is not theoretical: “Collins . . . reported that Norwood

overdrew all of her bank accounts and that, consequently, she

no longer had her own bank accounts.” (Maj. opn., ante, at p. 8;

see Buel, at p. 20 [“Financial abuse is a common tactic of

abusers.”].) On the day of Abel’s death, Collins was applying for

jobs in an apparent attempt to gain financial independence from

Norwood that simply came too late. (Maj. opn., ante, at p. 10.)

Would it have been reasonable for the jury to have

concluded that Collins had the support of friends or family

willing and able to shoulder the burden of housing two

additional adults and an infant? The evidence seems awfully

thin. (Maj. opn., ante, at p. 7, fn. 2; compare dis. opn., post, at

p. 43 with People v. Marshall (1997) 15 Cal.4th 1, 34 [“The

supporting evidence [on sufficiency review] must be substantial,

that is, ‘evidence that “reasonably inspires confidence and is of

‘solid value.’ ” ’ ”].) It requires no speculation, in reviewing this

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PEOPLE v. COLLINS

Liu, J., concurring

record, to consider the reality that women of limited financial

means often “do not have a safe place to go at which their abuser

cannot reach them,” and family and friends “may be reluctant to

invite the abused family into their own home, fearing for their

own safety.” (Mahoney, How Failure to Protect Laws Punish the

Vulnerable (2019) 29 Health Matrix 429, 445 (Mahoney).) The

social isolation of women in abusive relationships is “typical,” as

the batterer gradually “cut[s] the victim off from family, friends,

and colleagues,” leaving women “without safety plans and

reality checks.” (Buel, supra, 28 Colo. L. at p. 22; see Fatal Peril,

supra, at p. 76 [“isolation is an emotional abuse tactic often used

to exert control and maintain power”].)

Finally, domestic violence presents “additional

complexities in considering what reasonable steps can be taken

for an abused parent to safely navigate around or leave an

abusive co-parent.” (Maj. opn., ante, at p. 33; see ibid. [“the risk

of being killed by one’s abuser increases significantly when a

victim of intimate partner violence attempts to leave their

abuser” and “[t]his risk of femicide is heightened for postpartum

women, such as Collins”].) Given those complexities, I find it a

stretch to say the jury could have concluded beyond a reasonable

doubt that Collins acted with implied malice toward Abel or

proximately caused his death “because she valued her

relationship with Norwood more than she valued Abel’s well-

being.” (Dis. opn., post, at p. 39; see id. at pp. 5, 33–34.) To say

that Collins, who was unsafe and financially strapped,

“prioritized” her relationship with her abuser (id. at p. 33)

presumes a degree of volition that is not supported by “evidence

which is reasonable, credible, and of solid value” (People v.

Johnson (1980) 26 Cal.3d 557, 578).

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Liu, J., concurring

The dissent contends that facts about the inability of

women who are victims of domestic violence to leave their

abusers were “not before the jury” and are thus “irrelevant to

our substantial evidence review.” (Dis. opn., post, at p. 44,

fn. 11.) Appellate review for sufficiency of the evidence, the

dissent says, “ ‘is limited to considering the evidence actually

presented to the jury.’ ” (Id. at p. 45, fn. 11.) No one disagrees

with this hornbook rule. (Maj. opn., ante, at p. 7, fn. 2.) But

substantial evidence review requires us to determine what

inferences from the evidence are “reasonable,” and what is

“reasonable” is a legal question informed by “[c]ommon sense . . .

and an appropriate sensitivity to social context.” (Oncale v.

Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 82.) This

is no less true here than in other contexts. (See, e.g., id. at p. 81

[severity of workplace harassment is “judged from the

perspective of a reasonable person in the plaintiff’s position” and

“requires careful consideration of the social context in which

particular behavior occurs and is experienced by its target”];

People v. Flores (2024) 15 Cal.5th 1032, 1044–1046 [making

numerous sociological and behavioral observations, without

citation to evidence, about what conduct is “ ‘odd,’ ” “ordinary,”

“noteworthy,” or a “deviation from perceived social convention”

when a person is approached by police]; id. at p. 1049 [noting in

dicta that courts have taken into account a racial “group’s

experience with law enforcement . . . in evaluating the objective

reasonableness of any asserted suspicion of criminality”].)

The dissent ultimately concedes that “[t]he severe burdens

suffered by victims of domestic or intimate partner violence are

widely known” and “may be considered . . . by a reviewing court,”

but says it is improper to consider the studies that have made

those burdens widely known. (Dis. opn., post, at p. 44, fn. 11.)

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Liu, J., concurring

The dissent cites no authority for this view, and case law

supports the unremarkable proposition that reviewing courts

need not and should not ignore either widely known facts or

their empirical bases. (See, e.g., Miller v. Alabama (2012)

567 U.S. 460, 471 [relying on “what ‘any parent knows,’ ” backed

up by “science and social science,” in explicating the diminished

culpability of juveniles].) Indeed, venerable precedents of this

court have done exactly what the dissent would disallow here.

(See Perez v. Sharp (1948) 32 Cal.2d 711, 723–724 & fn. 6

[striking down California’s anti-miscegenation laws and citing

numerous empirical studies in discussing the “considerable

reevaluation by social and physical scientists in the past two

decades” of data purporting to correlate race and intelligence];

Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 19–20 & fns. 19–20

[citing numerous empirical studies in documenting “legal and

social disabilities” facing women and concluding that “sexual

classifications are properly treated as suspect”].) The studies in

Perez and Sail’er Inn were not cited in any briefing before this

court and by all indications were “raised for the first time by the

court or its members.” (Dis. opn., post, at p. 44, fn. 11.) The

dissent says those cases are “not analogous” (ibid.) but does not

explain why courts may consider social science that underlies

general knowledge in deciding some constitutional questions

but not in deciding the due process issue here.

The reality is that intimate partner violence is a “common”

occurrence affecting the parental relationships in which

children are raised. (Centers for Disease Control and

Prevention, Preventing Intimate Partner Violence (2022)

<https://stacks.cdc.gov/view/cdc/124386/cdc_124386_DS1.pdf>

[as of Jan. 6, 2025].) About one in three women report having

experienced severe physical violence from an intimate partner

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PEOPLE v. COLLINS

Liu, J., concurring

in their lifetime. (Ibid.) Such violence constrains a parent’s

options and ability to protect her child, and it is appropriate to

consider this social context in assessing what conclusions a jury

can reasonably draw from the evidence. And the fact that

Collins was not a “perfect victim” is no reason to diminish the

abuse and fear she endured. (See Meadows & Goodmark,

Discretion and Credibility, Dignity and Mercy: The Case of PT,

A Criminalized Survivor (2023) 38 Wis. J.L. Gender & Society

53, 54 [“Survivors who are ‘imperfect victims’ — who fail to

conform to victim stereotypes that cast victims of intimate

partner violence as weak, passive, white, straight, middle class,

and morally upright — are often deemed not credible or not

worthy of mercy and compassion by prosecutors, courts, and

parole boards.”].)

To be clear, I do not contend that Collins bears no

culpability for Abel’s tragic death. Collins may well have been

guilty of a crime, such as felony child endangerment, an offense

punishable by up to six years in prison. (Pen. Code, § 273a,

subd. (a); see maj. opn., ante, at p. 35.) However, for the reasons

above and in today’s opinion, I agree that Collins’s second degree

murder conviction is not supported by substantial evidence.

LIU, J.

We Concur:

GROBAN, J.

EVANS, J.

12

PEOPLE v. COLLINS

S279737

Concurring Opinion by Justice Kruger

I concur in the judgment and in parts I., II.A., II.B.1., II.C.,

and III.

KRUGER, J.

1

PEOPLE v. COLLINS

S279737

Dissenting Opinion by Chief Justice Guerrero

The majority characterizes this matter as a “close case”

(maj. opn., ante, at p. 1), and it may have been — for the jury.

The jury was tasked with sorting through the medical evidence,

understanding the circumstances of two-month-old Abel’s

death, determining what defendant Brittney Collins knew about

Matthew Norwood’s abuse, and ultimately making its best

judgment about Collins’s ability to protect Abel from further

abuse and about her state of mind when she failed to do so. But

when the jury’s verdict is challenged for lack of evidence, what

might appear to be a close case for the jury is a straightforward

case on appeal.

An appellate court does not “ ‘ask itself whether it believes

that the evidence at the trial established guilt beyond a

reasonable doubt.’ [Citation.] Instead, the relevant question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

[Citation.] This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” (Jackson v.

Virginia (1979) 443 U.S. 307, 318–319 (Jackson); accord, People

v. Mumin (2023) 15 Cal.5th 176, 198 (Mumin).)

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Guerrero, C. J., dissenting

The majority fails to observe this distinction. In reversing

the judgment, the majority credits evidence the jury could

reasonably disbelieve, it resolves conflicts in the evidence the

jury could reasonably have resolved differently, and it reweighs

the evidence and draws inferences in favor of Collins rather than

the opposite. For example, the majority makes much of the fact

that a nurse practitioner testified she examined Abel the day

before Norwood’s fatal abuse and she did not see any signs of

external injury. (Maj. opn., ante, at pp. 2–3, 9, 26–27, 36.) But

the jury could reasonably have attributed little if any weight to

this testimony in determining Collins’s mental state. It was

contradicted by Collins’s statements to police that the nurse did

in fact recognize an injury: Abel’s swollen leg. It was also

contrary to Collins’s own direct knowledge of Norwood’s

repeated and brutal abuse of Abel, including crushing Abel’s

infant body with enough force to break multiple ribs. In fact,

the undisputed medical evidence showed that Abel had already

suffered numerous rib fractures and other internal injuries at

the time of the examination. The nurse practitioner did not

know to look for such injuries because Collins kept silent about

Abel’s suffering. The nurse practitioner’s testimony did not

require the jury to ignore other compelling evidence of Collins’s

awareness of the severity of Norwood’s abuse.

Contrary to the majority’s position, when viewed through

the lens of the correct standard of review, the jury’s verdict is

amply supported by the evidence. The majority focuses on the

alternate theory of aiding and abetting, but the prosecution’s

primary theory at trial was Collins’s liability as a direct

perpetrator of implied malice murder. The basic substantive

elements of that crime are — or should be — undisputed: A

defendant is liable for implied malice murder as a direct

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

perpetrator “when ‘the killing is proximately caused by “ ‘an act,

the natural consequences of which are dangerous to life, which

act was deliberately performed by a person who knows that his

conduct endangers the life of another and who acts with

conscious disregard for life.’ ” ’ ” (People v. Reyes (2023)

14 Cal.5th 981, 988 (Reyes).) Although the majority wrongly

grafts an additional element onto this established standard, it

is clear that a reasonable jury could find each Reyes element

beyond a reasonable doubt based on the evidence presented at

trial.

We have long recognized that the breach of a parental duty

of care may supply the act necessary for criminal liability,

including for murder. (People v. Heitzman (1994) 9 Cal.4th 189,

198 (Heitzman).) As the majority confirms, a parent breaches

this duty of care when the parent fails to take every step

reasonably necessary under the circumstances to protect his or

her child from harm. (Maj. opn., ante, at p. 14.) The jury here

could reasonably find that Collins did not take every reasonably

necessary step to protect Abel. Given the magnitude of the

threat facing Abel — discussed below — a reasonable parent in

Collins’s situation would not have allowed Norwood to care for

Abel while he was abusing methamphetamine. A reasonable

parent would have either cared for Abel herself, forced Norwood

to leave, or left Norwood and taken Abel with her. Further, the

jury could reasonably find that Collins’s failure to protect Abel

proximately caused his death: Abel would not have died if

Collins had acted as a reasonable parent and taken all

reasonably necessary steps to protect him.

The jury could also reasonably find that the natural

consequences of Collins’s failure to protect Abel from Norwood

were dangerous to Abel’s life. Indeed, defense counsel conceded

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

this element at trial. This concession was well taken. The

evidence showed that Norwood was skeptical that Abel was his

son, he threatened Abel’s life before he was born, he brutally

assaulted Collins while she was pregnant, and he repeatedly

and severely abused Abel during his short life. Norwood was

more likely to act violently and abuse Abel when using

methamphetamine, and Norwood was high and angry and

violent on the day of the fatal attack. Based on Abel’s vulnerable

state, Norwood’s lethal threats, and the severe abuse he had

already inflicted, Norwood’s care involved a high degree of

probability of Abel’s death — which, tragically, did in fact occur.

It was likewise reasonable for the jury to find that Collins

knew her failure to protect Abel endangered his life. Collins

knew all of the facts that made Norwood’s care so dangerous:

his drug use, his violence, his threats, and his brutal and

repeated abuse of Abel. Collins admitted she saw Norwood

shaking Abel, choking him, smacking him, “bounc[ing]” him,

“thump[ing]” him, and crushing his body with such force that

Collins knew Abel could fracture a rib. In her briefing, Collins

acknowledges that she admitted to police “that she knew

Norwood had previously assaulted Abel enough to cause serious

injury.” Collins also knew Abel was a fragile and vulnerable

infant. She had been specifically informed following Abel’s birth

that shaking or squeezing him too hard risked serious injury or

death. This evidence is more than sufficient to support the jury’s

finding that Collins knew that allowing Norwood to care for Abel

not only risked serious injury, as she admitted, but endangered

Abel’s life as well.

The same facts suffice to support the jury’s finding that

Collins acted with conscious disregard for life, since Collins

failed to protect Abel notwithstanding her knowledge of the risk

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

presented by Norwood’s care. But Collins’s actions after the

fatal attack provide additional support. After Norwood’s final

act of abuse — which caused a loud bang with no crying

afterward — Collins did not check on Abel for over an hour, even

after Norwood left their home oddly and in a hurry. Although

Collins was distraught by Abel’s condition, and she immediately

suspected Norwood, she acted to protect Norwood rather than

assist medical professionals or the police investigating Abel’s

injuries. When Collins and Norwood faced questioning, Collins

told Norwood she would not “throw [him] under the bus,” she

lied to detectives and doctors about Norwood’s abuse, and she

callously suggested her elderly and infirm grandmother was

responsible for Abel’s death. A reasonable jury could view

Collins’s efforts to protect Norwood as confirmation of her

disregard for the risk Norwood posed to Abel’s life. For Collins,

Norwood came first, even if it meant risking Abel’s life to

maintain her relationship with him.

Because the evidence supports Collins’s liability for

implied malice murder based on her own failure to protect Abel,

and no other error appears, it is unnecessary to address whether

Collins would also be liable as a direct aider and abettor. (People

v. Ghobrial (2018) 5 Cal.5th 250, 278 (Ghobrial).) The judgment

against Collins should be affirmed, and I respectfully dissent

from the majority’s contrary conclusion.

I. STANDARD OF REVIEW

In a potentially close case, it is all the more important to

faithfully apply the standard of review. When the jury’s verdict

is attacked for lack of evidence, the standard of review is not a

mere academic matter. It respects the essential role and

responsibility of the jury to determine which evidence to believe

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

and to decide which reasonable inferences based on the evidence

should be credited. (Jackson, supra, 443 U.S. at p. 319.) For an

appellate court to “resolve conflicts in the evidence and weigh

the testimony of witnesses” would be “ ‘a clear usurpation of the

jury’s exclusive function.’ ” (Mumin, supra, 15 Cal.5th at

p. 202.) Twelve jurors heard the evidence, watched Collins and

Norwood testify, and deliberated among themselves to reach

their verdict. The standard of review ensures their view of the

evidence is given due deference. We will reverse only in extreme

cases, where the jury acted unreasonably or irrationally, and its

view of the evidence finds no reasonable support in the record.

The majority provides a basic statement of the standard:

“In considering a sufficiency of the evidence claim, we review

‘the whole record in the light most favorable to the judgment

below to determine whether it discloses substantial evidence —

that is, evidence which is reasonable, credible, and of solid

value — such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.’ ” (Maj. opn., ante,

at p. 12, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)

The majority also properly cautions against relying on

suspicion, surmise, or conjecture. (Maj. opn., ante, at pp. 12–

13.) But, other than viewing the record in the light most

favorable to the judgment, the majority says little about how our

role on appeal differs from the jury’s role.

Under the law, our role differs from the jury’s role quite

significantly. “ ‘ “We resolve neither credibility issues nor

evidentiary conflicts; we look for substantial evidence.” ’ ”

(People v. Penunuri (2018) 5 Cal.5th 126, 142.) “ ‘Conflicts and

even testimony which is subject to justifiable suspicion do not

justify the reversal of a judgment, for it is the exclusive province

of the trial judge [in a court trial] or jury to determine the

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

credibility of a witness and the truth or falsity of the facts upon

which a determination depends.’ ” (Mumin, supra, 15 Cal.5th at

p. 202.)

These principles lead to an especially limited role where

the prosecution relies on circumstantial evidence, such as to

prove a defendant’s state of mind. “ ‘Evidence of a defendant’s

state of mind is almost inevitably circumstantial, but

circumstantial evidence is as sufficient as direct evidence to

support a conviction.’ ” (People v. Nguyen (2015) 61 Cal.4th

1015, 1055.) “ ‘The standard of review is the same in cases in

which the prosecution relies mainly on circumstantial evidence.’

[Citations.] ‘We presume in support of the judgment the

existence of every fact the trier of fact reasonably could infer

from the evidence.’ ” (People v. Westerfield (2019) 6 Cal.5th 632,

713 (Westerfield).) “ ‘ “ ‘ “ ‘Although it is the duty of the jury to

acquit a defendant if it finds that circumstantial evidence is

susceptible of two interpretations, one of which suggests guilt

and the other innocence [citations], it is the jury, not the

appellate court[,] which must be convinced of the defendant’s

guilt beyond a reasonable doubt. “ ‘If the circumstances

reasonably justify the trier of fact’s findings, the opinion of the

reviewing court that the circumstances might also reasonably

be reconciled with a contrary finding does not warrant a reversal

of the judgment.’ ” ’ ” ’ ” ’ ” (Ghobrial, supra, 5 Cal.5th at p. 278.)

“As we recognized long ago, ‘[i]t may be confidently declared

that, founded upon the evidence, the jury not only is authorized

to make any logical and reasonable deduction, but also that the

jury is the exclusive judge of the weight and value of the

inference that may be drawn by it . . . .’ ” (Mumin, supra,

15 Cal.5th at p. 202.)

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

Significantly, under the standard of review, an appellate

court must set aside its own view of the strength or believability

of the evidence. For example, the appellate court cannot reject

evidence the jury could reasonably have credited. “ ‘ “To

warrant the rejection of the statements given by a witness who

has been believed by a trial court [or jury], there must exist

either a physical impossibility that they are true, or their falsity

must be apparent without resorting to inferences or

deductions.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482, 519.)

Moreover, the appellate court cannot credit evidence — even

uncontroverted evidence — that the jury could reasonably have

rejected. “The jury . . . is the sole judge of the credibility of the

witnesses [citations] and is free to disbelieve them even though

they are uncontradicted if there is any rational ground for doing

so.” (Blank v. Coffin (1942) 20 Cal.2d 457, 461; accord, In re

Jessica C. (2001) 93 Cal.App.4th 1027, 1044.)

Indeed, as we recently confirmed, “It is well settled that

the jury has wide latitude to believe or disbelieve witnesses, or

even specific portions of their testimony, as it sees fit. ‘ “[T]he

jury properly may reject part of the testimony of a witness,

though not directly contradicted, and combine the accepted

portions with bits of testimony or inferences from the testimony

of other witnesses thus weaving a cloth of truth out of selected

available material.” ’ ” (In re Lopez (2023) 14 Cal.5th 562, 591

(Lopez).)

The majority fails to describe these principles and, more

importantly, fails to apply them in its assessment of the jury’s

verdict. As explained further below, the majority’s flawed

conclusion is directly attributable to these errors.

8

PEOPLE v. COLLINS

Guerrero, C. J., dissenting

II. STATE OF THE EVIDENCE

In its factual and procedural background, the majority

begins by synthesizing the evidence into a coherent story. (Maj.

opn., ante, at pp. 1–5.) In relating the circumstances of Collins’s

pregnancy and Abel’s death, the majority does not describe the

specific testimony or physical evidence as it was formally

presented at trial, e.g., via the testimony of a police detective,

Collins’s interview with police, or medical records. Although I

have no quarrel with this approach as a general matter, such a

synthesis must be carefully drafted to ensure it conforms to the

principles of substantial evidence review described above. For

example, it must describe the facts in the light most favorable

to the jury’s verdict, and it cannot accept as true evidence or

inferences the jury did not have to believe. Otherwise, the

synthesis may reflect the reviewing court’s own view of the

evidence and the inferences to be drawn therefrom, rather than

the evidence and inferences a reasonable jury could have

believed in reaching its verdict.

The synthesis offered by the majority falls on the wrong

side of this divide. It consistently credits exculpatory

evidence — primarily Collins’s own testimony — while omitting

or minimizing evidence and reasonable inferences that support

Collins’s guilt. For example, the majority accepts as true

Collins’s testimony at trial that she demanded Norwood move

out the morning of the fatal attack on Abel (and that Norwood

was actually doing so). But the jury did not have to believe this

testimony. Collins did not mention this fact in her interviews

with police, and Norwood denied it.

Following its synthesis, the majority summarizes Collins’s

interviews with police and her testimony at trial, along with

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

other evidence before the jury. But this summary, too, is skewed

in favor of Collins. Its labored justification for failing to

acknowledge that Collins saw Norwood “choke” Abel — despite

Collins’s statement to police that what she saw “ ‘doesn’t look

like choking, it was choking’ ” — is illustrative. (Maj. opn., ante,

at p. 7, fn. 2, italics added.) The summary also omits numerous

facts regarding Norwood’s conduct and Collins’s knowledge that

the jury could reasonably have credited in reaching its verdict.

The majority’s factual background is therefore inadequate

to assess the evidentiary support for the jury’s verdict. It

obscures rather than illuminates the factual findings and

reasonable inferences the jury could draw from the evidentiary

record. I offer the following corrective below, viewing the record

in the light most favorable to the judgment and summarizing

the key facts a reasonable jury could credit. This summary

shows how a reasonable jury could have convicted Collins of

implied malice murder, and why the jury’s verdict should not be

overturned by a reviewing court for lack of evidence.

The evidence showed that Norwood was a daily

methamphetamine user who was mean, angry, and violent,

especially when under the influence. The majority

acknowledges Collins used methamphetamine as well, though it

emphasizes her claim that she stopped using while she was

pregnant. (Maj. opn., ante, at p. 1.) The majority elides the fact

that a reasonable jury could find that her abstention was at best

only temporary. Collins told police she used methamphetamine

at least once after Abel was born.

Norwood and Collins were in a relationship when Collins

became pregnant, but Norwood did not believe Abel was his

biological son — another fact the majority omits. Collins

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

testified that Norwood brought it up “quite a few times” and

“would say Abel wasn’t his.” Collins said that neighbors told

Norwood that Abel was not his son, and even a family member

agreed.

Norwood stated multiple times he did not want to be a

father and he wished Collins were not pregnant. Once, when he

said he did not “want to be a dad,” he “jabb[ed]” at Collins’s

pregnant stomach with a screwdriver, causing Collins to “[take]

off running” and profess that she wanted to keep the baby.

When Collins was eight or nine months pregnant, Norwood told

her he “would make sure Abel wasn’t born, like try to make [her]

lose him.” Norwood told a neighbor of his intent to kill Abel as

well, stating “I don’t want that fucking baby. She should abort

the goddamn baby. I don’t want to be a damn dad. We should

kill that baby.” The jury could reasonably find Norwood’s

malicious statements especially significant because they

occurred at such a late stage in Collins’s pregnancy.

Norwood assaulted Collins while she was pregnant,

including acts specifically directed at Abel. Norwood choked

Collins, pushed her down, and kneed her in the stomach. Collins

admitted to police she knew Norwood was trying to make her

lose Abel.

Collins told police and testified she had a difficult

pregnancy, though the jury did not have to believe she “nearly

died during childbirth,” as the majority asserts. (Maj. opn., ante,

at p. 2.) The jury could readily conclude, however, that Abel

struggled mightily: He was admitted at birth into a neonatal

intensive care unit (NICU) with meconium aspiration and an

infection. Abel remained in the NICU for about a week.

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

At home, after Abel’s discharge, Norwood was angry and

physically abusive toward the newborn, consistent with

Norwood’s prior threats and violence. Collins told police

Norwood would “get mad” at normal behavior like Abel “not

go[ing] to sleep” or crying “too long.” Norwood would be really

agitated and upset, “more than . . . you should be at a baby.”

Although the majority tries to minimize Norwood’s abuse,

Collins told police she saw Norwood “smack[]” Abel, shake him

back and forth, hit his head on furniture, “chok[e]” him, and

“bounce” him too hard. She saw Norwood cover Abel’s mouth

repeatedly to keep him from crying. Collins saw Norwood grab

Abel’s leg too hard and flip him over. Collins told police Norwood

would “roll [Abel] over by his leg” all the time. Indeed, Collins

said she noticed Abel’s leg was swollen the day before Norwood’s

fatal abuse.1

Once, Collins walked in and saw Norwood with his hand

raised, about to hit Abel in the head. Collins said, “It looked like

he could’ve been hitting him.” Abel’s eyes “were really red” and

“swollen.” Later, Collins told police, “[E]ven though I haven’t

seen [Norwood] physically hit [Abel], I know he did it because of

all those small things.”

Most seriously, Collins admitted she witnessed Norwood

push down on Abel’s chest with enough force to break his ribs,

while shaking Abel’s head back and forth. Abel was screaming

1

Collins told police she mentioned to the nurse practitioner

that Abel’s leg was swollen. She said the nurse agreed it was

swollen and asked Collins to bring Abel back if it got worse.

Collins’s statements provide an additional reason why a

reasonable jury could give the nurse practitioner’s trial

testimony — which did not mention Abel’s swollen leg — little

or no weight. (See fn. 6, post.)

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Guerrero, C. J., dissenting

and crying. Medical scans later confirmed that Norwood’s abuse

had caused Abel to fracture seven ribs. At trial, a doctor

testified that these rib fractures “are very clearly associated

with violent shaking of an infant” and “extreme chest

compressions most often during an extremely violent shaking

process to the infant, such that the ribs snap along the back near

the spine.”

During the week or two prior to Norwood’s fatal abuse,

Collins heard five to six loud “thumps” when Norwood was

caring for Abel alone. It sounded like something “smack into”

something else. After each thump, Abel would scream or cry

even louder. Collins said she asked Norwood for an explanation,

but she admitted she knew at the time his explanations did not

make sense.

On the day of the fatal abuse, Norwood was high on

methamphetamine. Collins saw Norwood use

methamphetamine that morning, as well as the day before and

likely the day before that. At trial, Collins testified that she and

Norwood had argued that morning, and Norwood had become

violent, breaking her phone. Collins’s grandmother testified she

was scared of Norwood that day.

Collins knew Abel was fussier than normal since he had

received several vaccinations the day before. While Collins was

on the couch, Norwood insisted that he care for Abel and give

him his bottle. Collins told police that it was “weird” that

Norwood “wanted to take care of him so much” because Collins

normally cared for Abel. At trial, Collins admitted she knew

Norwood was still high on methamphetamine, but Collins

allowed him to take Abel anyway.

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

Norwood carried Abel into his room, and Collins heard a

“loud bang” similar to other times when Norwood took care of

(and abused) Abel. This time, however, Abel did not make any

sound afterward. Collins told police, “All the sudden, he’s just

quiet even though I hear a loud bang? That’s not normal.”

Collins said that Norwood left afterward, “real antsy” and in a

hurry.2 But Collins remained on the couch. She only checked

on Abel an hour later, and she then found him in acute distress.

Collins picked Abel up and ran to her grandmother and then to

a neighbor’s house. When an ambulance arrived, Collins

“changed [clothes] really fast and [she] went into the

ambulance” with a paramedic.

After they arrived at the hospital, medical personnel

quickly found evidence that Abel had been seriously abused. As

the majority explains, police searched Collins’s grandmother’s

house, and they recorded a conversation between Norwood and

Collins in a police car while they waited. (Maj. opn., ante, at

p. 5.) During the conversation, Norwood told Collins he loved

her and said, “Just making sure you know that. I’d never do

anything to throw you under the bus or anything like that.”

Collins responded, “Babe, I’m not gonna throw you under the

bus.” Later, Norwood said, “I know you’re scared baby but no

matter what, I love you. They’re trying to get me for this not

you.” Collins replied, “There’s nothing to be scared about. We

didn’t do anything.”

2

Collins told police she thought Norwood was going to

Home Depot, but a friend testified at trial that Norwood met

with him to try to get more methamphetamine. They were not

successful, and Collins called Norwood later when she

discovered Abel’s condition.

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Guerrero, C. J., dissenting

Collins was interviewed several times by police. During

her first interview, after being told about Abel’s injuries, Collins

claimed that Norwood had never harmed her or Abel. She said

Norwood “even apologizes when he steps on your toe on

accident.” Collins told police Norwood was never verbally

abusive either, and she denied that Norwood ever said anything

negative about Abel. Collins took responsibility for a syringe

found at her grandmother’s house, and she told a long and

elaborate story about how she used it to inject

methamphetamine with some friends.

Collins repeatedly suggested to police that her

grandmother might have dropped Abel and been responsible for

his injuries. Collins said her grandmother had been violent

when she was young and she “lied to the family before about

stuff.” Collins suggested a former boyfriend might also be

responsible. She said her former boyfriend had been physically

abusive when they were together.

Later, a detective asked Collins, “for Abel’s own sake and

his protection, will you tell me what happened to him?” Collins

responded, “I don’t know. I doubt his dad [did] anything to him.”

She claimed, “I want to figure it out and know as much as you

guys do.” She continued to deny Norwood was responsible, but

she said if he were responsible he should attend parenting

classes.

Collins eventually acknowledged she had been

withholding information from the detectives. She told them that

Norwood had “a record” and she did not want anything to

happen to him. Collins said Norwood told her to blame her

grandmother. She said she “just wanted to protect” Norwood. A

detective asked, “Who are you more afraid of losing,” Abel or

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Guerrero, C. J., dissenting

Norwood? Collins responded, “At this point, both. Abel cause

he’s my baby and he’s the only baby. And then, [Norwood] —

he’s the only person that actually man wise who I’ve loved and

cared about.” Collins admitted the syringe was not hers.

Instead, it was Norwood who was a heavy methamphetamine

user. Still, Collins denied that Norwood had abused Abel. She

said only that his drug use might have caused him to make a

“mistake.”

During Collins’s second interview, she disclosed that

Norwood had been convicted of domestic abuse against a former

girlfriend, but she initially denied that Norwood physically

abused her. Over time, however, Collins acknowledged the

violence during her pregnancy and abuse of Abel described

above. Collins more squarely admitted Norwood might be

responsible, while claiming she was helpless. She told the police

“it had to be [Norwood]” because if they “could watch me open a

water bottle[,] I can barely open it.” Collins later repeated, “Like

I told you, I can barely open a water bottle. Half the time, I have

to ask somebody.”

While Collins continued to deny that she knew Norwood

was hurting Abel, she also said she was afraid to “call the police

on him.” She said Norwood told her if she ever put him in jail,

he would give the police a “real reason” to arrest him. Collins

said she was scared “of him like tryin’ to kill me or something”

but she knew “that’s not an excuse.” Collins said she told

Norwood to leave “a few times.” When detectives asked why she

did not leave with Abel herself, Collins responded, “I didn’t

wanna leave [Norwood] there with my grandma. What if he did

something to her?” The detectives pointed out that Collins could

have left with her grandmother or she could have stayed with

family. Collins first replied, “She doesn’t get along with them,”

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Guerrero, C. J., dissenting

and then went on to say, “The only one she’s got is Connie and

she lives in a trailer but I didn’t even think about that.”

In a third interview, Collins expressed regret for her

inaction. She told detectives, “I should have told [Norwood] to

leave [Abel] alone. Leave him next to me. I should have told

[Norwood] to leave sooner.” When detectives asked Collins if

she felt like she failed to protect Abel, she responded, “A little

bit,” and she explained, “If I would have told [Norwood] to leave

sooner or called the police sooner, Abel wouldn’t be hurt.”

At trial, however, Collins changed her story. She said she

lied to police about Norwood’s abuse of Abel. She testified that

she never saw Norwood bump Abel into things, put his hand

over Abel’s mouth, squeeze him, or otherwise abuse him. She

told the jury the loud bangs she heard were “actually the

bassinet hitting the totes on the side of the room.” Collins said

she would “[d]efinitely” have called police if Norwood had hit

Abel.

Collins also denied that Norwood was violent toward her.

She said she “[m]ore than likely” would have called police if

Norwood had hit her. Collins admitted that Norwood used

methamphetamine frequently and had “rage” or anger. When

the prosecutor asked why Collins would allow a drug abuser

with rage around her son, Collins responded that she needed

Norwood’s income and help around the house. She said, “I still

needed help to get up. I couldn’t carry a glass of water by

myself.”

Collins denied illegal drug use herself. She said that she

tried marijuana once and “almost choked to death,” but

otherwise she had never used.

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Collins admitted she lied to police about the syringe and

her grandmother’s possible responsibility for Abel’s injuries.

But she denied that she was trying to protect Norwood from law

enforcement. On cross-examination, Collins acknowledged that

Norwood had done “little stuff” to her while she was pregnant,

like pushing her down, kneeing her stomach, and choking her

one time. She testified that Norwood had kicked her in the face

accidentally while he was asleep. Collins also acknowledged

that Norwood said he would make sure Abel was not born, but

she explained that Norwood told her she had misunderstood.

Collins said Norwood frequently acted as a caring and attentive

father during her pregnancy and afterward, including buying

prenatal vitamins, attending medical appointments, and

singing to Abel in the womb.

Collins professed that she loved Abel more than Norwood,

but she acknowledged she “stood up for [Norwood] at every

turn.” Collins admitted that her statements to police during her

first interview showed she cared more about Norwood than Abel.

She said her lies affected everyone, and “Abel the most.”

In his closing argument, the prosecutor primarily

contended that Collins was guilty of implied malice murder as a

direct perpetrator. He told the jury, “We have a two-month-old

child left to the devices of an abusive, violent, drug-addict

boyfriend who was full of rage. . . . [¶] At the time of the act,

[Collins] knew her failure to act was dangerous to human life.

Anyone would know that those acts are dangerous to human life.

It’s a two-month-old child. Common sense dictates you know

what you’ve seen, what she said she saw, is dangerous to a two-

month-old child. She sees violent shaking, choking, hand over

mouth, banging into objects, a two-month-old child. [¶] She

deliberately failed to act with a conscious disregard for human

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Guerrero, C. J., dissenting

life. Again, consider the knowledge she had. This is knowledge

only two people have, her and Matthew. How violent Matthew

Norwood was. The injuries he inflicted on her during

pregnancy. The threats made against her, against Abel, the

rage, the out-of-control drug use, the slamming dope. [¶] It’s

akin to putting Abel in front of a moving car and saying have at

it, knowing all of those things.”

While defense counsel agreed that Norwood’s care was

life-endangering, he argued that Collins had no reason to believe

Norwood would be violent. He minimized Collins’s statements

about her own abuse: “Now, Brittney also told you there was

some, what we called, domestic violence in the house. Like a lot

of young couples, they say and do mean things, regret it later.

That’s what I think happened here.” And defense counsel

contended that Collins thought Norwood was a good father:

“[T]his is what she saw. Here’s a guy that went through planned

parenting, went along with her to get drugs to conceive the baby,

went to classes. He was trying to improve.” He continued, “She

saw [Norwood] as a guy who was taking care of the baby. . . .

For two solid months he was doing well, very well, and for some

unknown reason snaps. That’s not Brittney’s fault.” Norwood

“went berserk just like that and nobody knew that was coming.”

The jury rejected this defense and convicted Collins of

second degree murder and assault with force likely to cause

great bodily injury. (Maj. opn., ante, at p. 11.) The Court of

Appeal affirmed. It held that the evidence supported the jury’s

verdict: “There was . . . ample evidence [Collins] knew that

when he was high, Norwood could be mean and abusive.

Norwood threatened Abel’s life while defendant was pregnant

and, after his birth, there was evidence defendant witnessed

Norwood mistreating her son in a variety of ways prior to [the

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Guerrero, C. J., dissenting

fatal abuse]: squeezing Abel hard enough to crack a rib, shaking

his head, banging his head into objects, and covering his mouth

in order to get him to stop crying. In addition, on multiple

occasions she heard loud bangs, which she knew were not

innocent or accidental, coming from the room where Norwood

was caring for Abel unobserved. [¶] Despite this evidence that

defendant knew Norwood was abusing Abel, defendant did

nothing to stop the abuse and continued to allow Norwood, while

high, to care for her son.”

The Court of Appeal found Collins’s actions after the fatal

attack relevant as well: “Even after [Collins] heard a loud and

troubling bang from the room where Norwood was caring for

Abel alone and no corresponding cry from Abel, defendant did

nothing; she remained on the couch until long after Norwood left

the family home in an antsy and atypical manner before

belatedly checking on her son’s well-being. Then, following

Abel’s hospitalization, defendant protected Norwood (at his

direction) by lying to the police about sundry matters: the

hypodermic needle, the possibility of [Collins’s grandmother]

being responsible for Abel’s injuries, and Norwood’s prior abuse

of her and her infant son.” It concluded, “From this and other

evidence presented that we find it unnecessary to summarize, a

reasonable juror could find defendant, by inaction and even

some affirmative actions, knowingly failed to protect her son

and thereby aided and abetted Norwood’s murder of Abel.”

III. IMPLIED MALICE MURDER

Although the Court of Appeal relied on the theory of aiding

and abetting, as noted the prosecutor primarily argued to the

jury that Collins was liable as a direct perpetrator of implied

malice murder. Sufficient evidence under either theory would

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Guerrero, C. J., dissenting

generally be enough to sustain a conviction. “The conviction

shall stand ‘unless it appears “that upon no hypothesis whatever

is there sufficient substantial evidence to support [the

conviction].” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508

(Cravens).) Consistent with the prosecutor’s approach, I focus

on Collins’s liability as a direct perpetrator.

The basic elements of implied malice murder as a direct

perpetrator are well settled: “Murder is committed with implied

malice when ‘the killing is proximately caused by “ ‘an act, the

natural consequences of which are dangerous to life, which act

was deliberately performed by a person who knows that his

conduct endangers the life of another and who acts with

conscious disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at

p. 988.)

A. Evidence of a Culpable Mental State

The majority concludes there was insufficient evidence of

Collins’s mens rea, or culpable mental state, to support her

conviction as a direct perpetrator of implied malice murder.

(Maj. opn., ante, at pp. 35–36.) As just stated, this mens rea

element requires that the defendant “ ‘ “ ‘knows that his [or her]

conduct endangers the life of another and . . . acts with

conscious disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at

p. 988; accord, People v. Knoller (2007) 41 Cal.4th 139, 143

(Knoller).)

Despite our recent reaffirmation of this articulation in

Reyes, and the majority’s recitation of identical language from

Knoller (maj. opn., ante, at p. 35), the majority goes on to

immediately disregard it. It finds the mens rea element lacking

because, in the majority’s view, where a defendant’s prosecution

is based on a failure to protect, the defendant must “know[] to a

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

substantial degree of certainty that another’s life-endangering

act is occurring or is about to occur and fail[] to take reasonable

steps to intervene in the face of such an act.” (Maj. opn., ante,

at p. 36, fn. 9.) Although the majority asserts it is “applying

decades of precedent,” it cites no authority for adding an element

to the established standard of implied malice in this context.

(Ibid.)

To the contrary, decades of precedent establish that

culpability for implied malice murder based on a failure to act —

including a failure to protect — rests “upon state-of-mind factors

applicable generally” to crimes of homicide. (1 LaFave,

Substantive Criminal Law (3d ed. 2018) § 6.2(e), pp. 607–608.)

The applicable form jury instructions — including those given

to the jury here — likewise do not distinguish between an

affirmative act and a failure to act by a defendant under a duty

to do so. (See CALCRIM No. 520; see also CALJIC No. 8.31.)

The Courts of Appeal have repeatedly recognized this

principle, including specifically in the context of a parent’s

failure to protect. For example, in People v. Burden (1977)

72 Cal.App.3d 603, 614 (Burden), the defendant argued that he

could not be convicted of murder based on his failure to

adequately care for his infant son. The Burden court disagreed.

Consistent with “ ‘numerous authorities in England and the

United States,’ ” Burden held that “[t]he omission of a duty is in

law the equivalent of an act and when death results, the

standard for determination of the degree of homicide is

identical.” (Id. at p. 616.) In a similar context, People v. Latham

(2012) 203 Cal.App.4th 319, 327 (Latham) held, “The ‘omission

of a duty is in law the equivalent of an act . . . ’ [citation], and

thus, a defendant’s failure to perform an act that he or she has

a legal duty to perform is identical to the defendant’s affirmative

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Guerrero, C. J., dissenting

performance of an act.” Most recently, in People v. Werntz (2023)

90 Cal.App.5th 1093, 1115, review granted August 9, 2023,

S280278 (Werntz), which involved a failure-to-protect murder

prosecution, the court explained, “Passive conduct or omissions

may satisfy the actus reus component of murder where the

person is under a duty to act. [Citations.] And the failure to

perform an act that one has a legal duty to perform is legally

equivalent to performance of an act.”

Our opinion in Heitzman, supra, 9 Cal.4th 189, approved

of this line of authority. Although the majority here purports to

“join the majority of our sister courts in recognizing a parent’s

failure to act can constitute an affirmative act for the purposes

of criminal liability in some situations” (maj. opn., ante, at

p. 14), Heitzman already recognized such a rule. We explained,

“When a criminal statute does not set forth a legal duty to act

by its express terms, liability for a failure to act must be

premised on the existence of a duty found elsewhere.”

(Heitzman, at p. 198.) We identified, as one example, that a

criminal statute may “embody a common law duty based on the

legal relationship between the defendant and the victim, such

as that imposed on parents to care for and protect their minor

children.” (Ibid.) For that proposition, we approvingly cited

Burden, with the parenthetical explanation that Burden

involved a “murder defendant father under [a] common law duty

to care for [his] young son.” (Heitzman, at p. 198.)

In the absence of any explanation or citation to authority,

one must guess at the basis for the majority’s departure from

the established implied malice standard. The additional

element required by the majority appears similar to the mens

rea standard required for a direct aider and abettor of an

implied malice murder. (See Reyes, supra, 14 Cal.5th at p. 991

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

[mens rea requirement includes “ ‘knowledge that the

perpetrator intended to commit the act’ ” and “ ‘knowledge that

the act is dangerous to human life’ ”].) But direct aiding and

abetting is a different theory, and its elements are tailored to its

unique context. The heightened mens rea requirement

compensates to some extent for a lesser actus reus requirement.

For example, a direct aider and abettor need not personally

commit a life-endangering act to be liable for implied malice

murder, whereas a direct perpetrator must do so. (Compare

Reyes, at p. 991 [actus reus for an aider and abettor “ ‘includes

whatever acts constitute aiding the commission of the life-

endangering act’ ”] with id. at pp. 988–989 [actus reus for a

direct perpetrator requires “ ‘ “ ‘an act, the natural consequences

of which are dangerous to life’ ” ’ ” or which “ ‘ “involve[s] a high

degree of probability that it will result in death” ’ ”].) A direct

aider and abettor’s act also need not proximately cause the

victim’s death, whereas a direct perpetrator’s act must do so.

(People v. Franzen (2012) 210 Cal.App.4th 1193, 1216 (Franzen)

[“[W]hile the defendant must ‘in fact assist[]’ the primary actor

to commit the offense, there is no requirement that his conduct

be a but-for cause or even an essential factor in bringing it

about”]; People v. Swanson-Birabent (2003) 114 Cal.App.4th

733, 743 (Swanson-Birabent) [“The ‘act’ required for aiding and

abetting liability need not be a substantial factor in the

offense”]; 2 LaFave, Substantive Criminal Law (3d ed. 2018)

§ 13.2(a), p. 457.)3

3

The majority appears to invoke aiding and abetting

principles based on its belief that a parent who fails to protect

his or her child “has not actually done anything themself to

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

Moreover, the established mens rea requirement for a

direct perpetrator already reflects a high degree of culpability.

A parent must know that his or her failure to protect endangers

the life of the child, and the parent must act with conscious

disregard for life. (See Reyes, supra, 14 Cal.5th at p. 988.) A

person who harbors such a mental state is properly held liable

for murder in this context just as in any other context, assuming

the remaining elements of implied malice murder are also

satisfied.

The majority’s departure from the established implied

malice standard is all the more concerning because the majority

has done so in the absence of any briefing by the parties on this

issue. Collins did not raise this issue in her petition for review,

and neither party advocated for a new or different standard.

The parties’ briefing was limited by this court to the question of

substantial evidence. Collins has never contended that the

murder instructions provided to her jury, including CALCRIM

No. 520, were erroneous. The majority errs by raising and

deciding this apparently dispositive issue on its own accord.

(See Gov. Code, § 68081; Cal. Rules of Court, rule 8.516.)

affirmatively endanger a child in their care.” (Maj. opn., ante,

at p. 36, fn. 9.) The majority is incorrect. A child relies on his

or her parent for care and protection. It is obvious that a

parent’s failure to protect a child from harm “affirmatively”

endangers the child, just like a parent’s failure to provide food

or secure adequate medical care. (See, e.g., Werntz, supra,

90 Cal.App.5th at p. 1116 [recognizing that a parent’s inaction

“endangered” her child], review granted.) The majority itself

repeatedly suggests that Collins could be liable for felony child

endangerment. (Maj. opn., ante, at pp. 25, 34; see conc. opn. of

Liu, J., ante, at p. 12.) Its effort to excuse Collins of all

responsibility for endangering Abel here is wholly unpersuasive.

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

Under the established standard, the evidence supported

the jury’s finding that Collins harbored the mental state

required for implied malice murder, i.e., she knew her failure to

act endangered Abel’s life and she acted in conscious disregard

for life. Collins knew Abel was a fragile two-month-old infant

who had spent time in the NICU at birth. Based on her own

admissions, Collins knew Norwood was a violent

methamphetamine addict who had threatened Abel’s life, did

not believe Abel was his son, quickly became angry whenever

Abel exhibited normal behaviors, and had severely abused Abel

on numerous prior occasions. Collins knew Norwood had

shaken Abel, choked him, smacked him, bounced him too hard,

covered his mouth to keep him from crying, and crushed his body

with extreme force that Collins knew could fracture a rib — and

which did in fact do so. Collins admitted she thought Norwood

had hit Abel. She saw Norwood with his fist raised against Abel,

and Abel’s eyes were red and swollen like he had already been

hit. Collins heard Norwood “thump[ing]” Abel five or six times

in the weeks before his fatal abuse, and she knew Norwood’s

explanations for these noises were false.

In her briefing, Collins concedes she admitted to police

that “she knew Norwood had previously assaulted Abel enough

to cause serious injury.” The majority likewise admits, “There

was certainly a reasonable inference that Collins knew

Norwood’s care posed a high risk of serious injury to their child.”

(Maj. opn., ante, at p. 25.) A reasonable jury could look at the

facts and go further. With a history of abuse severe enough to

cause serious injury, a jury could readily infer that allowing

Norwood to care for Abel risked life-threatening abuse as well.

Abel was a fragile two-month-old infant, and the jury could

reasonably find that abuse causing serious injury also

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

threatened Abel’s life. It could also reasonably find that Collins

would make the same connection: “It takes no leap of logic for

the jury to conclude that because anyone would be aware of the

risk, [the defendant] was aware of the risk.” (People v. Moore

(2010) 187 Cal.App.4th 937, 941.) In addition, the jury heard

evidence that Collins was educated (she had an associate’s

degree in criminal justice administration) and that she had been

specifically instructed regarding the risk of death from shaking

or otherwise abusing an infant. The jury could reasonably find

that Collins subjectively knew Norwood’s abuse threatened

Abel’s life.

On the day of the fatal abuse, this danger was acute. The

jury could reasonably find that Collins knew Norwood was high

on methamphetamine, and she knew Norwood was even more

likely than usual to lash out violently against Abel because Abel

was fussy. Norwood had argued with Collins and become

violent, breaking her phone. The jury could reasonably conclude

that Collins knew she was endangering Abel’s life by allowing

Norwood to care for Abel under these circumstances.4

4

The majority contends that this dissent’s reasoning

“reveals how the now-invalid natural and probable

consequences doctrine undergirds the dissent’s position.” (Maj.

opn., ante, at p. 27, fn. 8.) It claims, “According to the dissent’s

logic, if the jury reasonably found Collins knew Norwood

committed felony child abuse, it effectively could impute

malice.” (Ibid.) The majority mischaracterizes the dissent’s

position. As explained above, the evidence — including Collins’s

own admission that “she knew Norwood had previously

assaulted Abel enough to cause serious injury” — supports the

reasonable inference that Collins knew Norwood’s care was life-

endangering. The jury was not required to limit its inferences

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

The majority asserts that consideration of Norwood’s

anger and violence toward Collins is “problematic” and “should

be done, if at all, with caution.” (Maj. opn., ante, at p. 24.) The

meaning of the majority’s comment is unclear. The majority

does not say this evidence is irrelevant or otherwise

inadmissible. It does not attempt to assess this evidence in light

of the relevant legal doctrines, such as implied malice or duress.

The majority notes that evidence of intimate partner violence

can be used as a factor in mitigation at sentencing, but

sentencing is a separate proceeding and it is premised on a

criminal conviction. The use of such violence as a mitigating

factor at sentencing does not preclude its use as incriminating

evidence at trial, if it is relevant to an issue in dispute.

The majority also confusingly states that “even if

Norwood’s anger towards Collins could support an inference

about Collins’s knowledge of the danger Norwood posed to Abel,

it would presumably also raise an even stronger inference about

the danger Norwood posed to Collins.” (Maj. opn., ante, at p. 23.)

But the jury did not have to follow this reasoning or believe the

threat posed by Norwood was symmetrical. Instead, the jury

could have believed Norwood posed a much greater threat to

Abel. Collins minimized her own abuse at trial, and the jury

could reasonably have believed that Norwood’s anger that day

to Collins’s express admissions. No imputation was required,

and under the instructions provided to the jury, no imputation

was allowed.

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Guerrero, C. J., dissenting

would find expression in severe physical violence toward Abel,

not Collins.5

The majority asserts that Norwood’s prior abuse was

“different in kind from Norwood’s fatal act” (maj. opn., ante, at

p. 36), but the majority does not explain how any alleged

difference could affect Collins’s perception of the risk when she

allowed Norwood to care for Abel that day. Regardless of the

character of Norwood’s final act of abuse, a reasonable jury could

find that Collins knew Norwood’s care endangered Abel’s life

based on the facts known to Collins prior to that final act. For

example, the fact that Norwood’s fatal abuse caused external

injuries does not mean that Abel’s prior internal injuries were

inconsequential. The majority claims that “the record does not

support a conclusion that Collins was aware that Norwood had

caused serious injury to Abel prior to the fatal act.” (Maj. opn.,

ante, at p. 37, fn. 10.) But, as noted, Collins herself concedes in

her briefing that she admitted to police that “she knew Norwood

5

The majority discounts these facts because, in its view,

“there is no evidence [Norwood] was still upset six hours later

when he went to change and feed Abel.” (Maj. opn., ante, at

p. 23.) But a reasonable jury would not need specific testimony

about Norwood’s mental state to infer that Norwood was still

“upset” in the afternoon. It could reasonably infer that Norwood

continued to be angry and upset that afternoon because he was

angry and upset earlier, he was often angry and upset, he had

used methamphetamine (which made him more angry and

upset), and he needed to set out to find more methamphetamine

(which the jury could infer would make a heavy drug user like

Norwood even more angry and upset).

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PEOPLE v. COLLINS

Guerrero, C. J., dissenting

had previously assaulted Abel enough to cause serious injury.”

The majority’s contrary view is unfounded.6

6

The majority also cites the nurse practitioner’s testimony

regarding her examination of Abel. (Maj. opn., ante, at pp. 26–

27, fn. 7, 32; see id. at p. 37, fn. 10.) But, as explained above, it

was for the jury to determine whether to believe this testimony.

It was plainly self-serving, since the nurse could be subject to

discipline or criticism for failing to conduct a comprehensive

examination or failing to notice an injury on Abel. The nurse’s

testimony was also directly contradicted by Collins’s statement

to police that the nurse recognized Abel’s swollen leg.

The majority apparently concludes the jury was required

to believe the nurse practitioner’s testimony in the absence of

evidence that she “abrogated her duties while repeatedly

examining Abel and lied while testifying.” (Maj. opn., ante, at

pp. 26–27, fn. 7.) The implications of the majority’s conclusion

are startling. Juries are commonly called upon to consider the

credibility of medical professionals. Under the majority’s

reasoning, a jury would be required to credit the testimony of a

medical professional, no matter how self-serving, unless specific

evidence of lying or other breach of duty were presented. That

is not the law. A jury may disbelieve a witness for any rational

reason, including the witness’s “demeanor while testifying” and

the “existence or nonexistence of a bias, interest, or other

motive.” (Evid. Code, § 780, subds. (a), (f); see Lopez, supra,

14 Cal.5th at p. 591.) The jury here was so instructed.

(See CALCRIM No. 226; see also CALJIC No. 2.20.) The

majority’s contrary conclusion rests on its misapplication of

authorities considering the evidentiary support for affirmative

findings, rather than credibility determinations. The two are

not the same.

In any event, even if the jury had accepted the nurse

practitioner’s testimony at face value, the jury could reasonably

have given this evidence little or no weight in determining

Collins’s state of mind. It could reasonably believe that the

nurse failed to notice external injuries on Abel, either through

negligence or because Collins failed to disclose the abuse she had

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Guerrero, C. J., dissenting

The majority asserts it would be “far reaching and without

precedent” to conclude that “a parent (or any other individual

with a duty to protect a child) can be held liable for murder if

they have witnessed a past act of child abuse and the child is

later killed.” (Maj. opn., ante, at pp. 36–37, fn. 10.) I agree. But

“witness[ing] a past act of child abuse” and the fact of a “later

kill[ing]” come nowhere close to describing the evidence in this

case or the elements of implied malice murder the jury was

required to find in order to convict Collins.

A reasonable jury could also find that Collins acted with

conscious disregard for life. Collins knew the risk that Norwood

posed to Abel, but she allowed Norwood to care for Abel anyway.

After the final act of abuse, Collins aligned herself with

Norwood, not Abel. When Collins heard the loud bang that was

Norwood slamming Abel against a hard surface — after which

Abel went silent — Collins did nothing to investigate. Even

though she claimed to have been concerned on prior occasions,

Collins did not check on Abel for over an hour, even after

Norwood was “real antsy” and left the home in a hurry. The jury

could reasonably find that Collins consciously disregarded what

witnessed. And, even if Abel had no external injuries, that

circumstance does not foreclose the reasonable inference that

Collins knew Norwood’s care threatened Abel’s life in light of the

threats, violence, and abuse Collins had actually witnessed —

including Collins’s own admission that she witnessed abuse

sufficient to cause serious injury to Abel. By elevating the nurse

practitioner’s testimony over contrary evidence, the majority

fails to respect “the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.”

(Jackson, supra, 443 U.S. at p. 319; accord, Mumin, supra,

15 Cal.5th at p. 198.)

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had happened to Abel, just as she disregarded the risk to his life

presented by No

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