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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Opinion of the Court by Evans, J.
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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PEOPLE v. COLLINS
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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PEOPLE v. COLLINS
Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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PEOPLE v. COLLINS
Opinion of the Court by Evans, J.
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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PEOPLE v. COLLINS
Opinion of the Court by Evans, J.
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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Opinion of the Court by Evans, J.
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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PEOPLE v. COLLINS
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
35
PEOPLE v. COLLINS
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
36
PEOPLE v. COLLINS
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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PEOPLE v. COLLINS
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
38
PEOPLE v. COLLINS
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,”
1
PEOPLE v. COLLINS
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
2
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
3
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
4
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
5
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
6
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.)
7
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
8
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).
9
PEOPLE v. COLLINS
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.)
10
PEOPLE v. COLLINS
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
11
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).)
1
PEOPLE v. COLLINS
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
2
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
3
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
4
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
5
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
6
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.)
7
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
9
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
10
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.
11
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.)
12
PEOPLE v. COLLINS
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.
13
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.
14
PEOPLE v. COLLINS
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
15
PEOPLE v. COLLINS
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,”
16
PEOPLE v. COLLINS
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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PEOPLE v. COLLINS
Guerrero, C. J., dissenting
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
18
PEOPLE v. COLLINS
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
19
PEOPLE v. COLLINS
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
20
PEOPLE v. COLLINS
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
21
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
22
PEOPLE v. COLLINS
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
23
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
24
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.
25
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
26
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
27
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.
28
PEOPLE v. COLLINS
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).
29
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
30
PEOPLE v. COLLINS
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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Guerrero, C. J., dissenting
had happened to Abel, just as she disregarded the risk to his life
presented by No
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