# People v. Burden

> California Court of Appeal · August 10, 1977 · 72 Cal. App. 3d 603

URL: https://www.frixlaw.com/law-library/cases/9729040

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JAMES RALPH BURDEN, Defendant and Appellant
- **Court:** California Court of Appeal
- **Decided:** August 10, 1977
- **Citations:** 72 Cal. App. 3d 603; 140 Cal. Rptr. 282; 1977 Cal. App. LEXIS 1749
- **Precedential status:** Published
- **Opinion:** Dissent by Ford
- **Judges:** Potter, Ford
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9729040

## Opinion text

FORD, P. J.
I dissent. I believe that while the evidence was sufficient to sustain a conviction of involuntary manslaughter, it was insufficient to warrant a verdict of murder of the second degree.
*622 The majority opinion lays stress upon the last two weeks of the baby’s life and thereby gives the false impression that the issue of malice was to be determined by events occurring in that period of time, whereas the record shows that the malnutrition existed from the time the infant left the hospital shortly after birth until his death almost five months later. As will be explained, the evidence showed gross negligence but not malice.
Dr. Hurd, who examined the infant at the Child Health Center in Long Beach on October 4, 1975—about a month after the infant’s birth—testified that the child then weighed six pounds, ten ounces, which was three ounces less than his weight at the time he left the hospital on September 9, 1975. Dr. Hurd further testified as follows: “A. Well, it was obvious the child was either not receiving or not assimilating the proper amount of food. Q. . . . Did you give some instructions to the parents about feeding him at that time? A. Yes, I did. Particularly in regard to not only in regard [sic] to the use of cereal, which often is retained when formula may not be, but also in regard to the positions of feeding. I always give infants that have had a report of difficulty in feeding instructions in regard to positions of the infant.”
The prosecution’s case as to the existence of malice appears to have rested mainly on the interrogation of defendant by Sergeant Dunyon and Detective Wren on February 24, 1976, portions of which are noted in the majority opinion. While defendant’s statements showed that he and his wife grossly neglected the child and that he admitted that he was at fault in so doing, they did not afford a substantial basis for a determination that he harbored malice toward the child during the period of neglect. 1 *623 (See People v. Montecino, 66 Cal.App.2d 85, 100-101 [ 152 P.2d 5 ]; cf. Eaglen v. State, 249 Ind. 144 [ 231 N.E.2d 147, 150-151 ]; State v. Staples, 126 Minn. 396 [ 148 N.W. 283 ]; State v. Bischert, 131 Mont. 152 [ 308 P.2d 969, 972 ]; State v. Mason, 18 N.C.App. 433 [ 197 S.E.2d 79 ]; Biddle v. Commonwealth, 206 Va. 14 [ 141 S.E.2d 710, 714-715 ].)
The test for determining the sufficiency of evidence—in the present case, the sufficiency of the evidence as to malice—is set forth in People v. Bassett, 69 Cal.2d 122 , at page 139 [ 70 Cal.Rptr. 193 , 443 P.2d 777 ]: “In resolving that contention the appellate court is required to determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citation.] The prosecution’s burden is a heavy one: ‘To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.’ [Citation.] Accordingly, in determining whether the record is sufficient in this respect the appellate court can give credit only to ‘substantial’ evidence, i.e., evidence that reasonably inspires confidence and is ‘of solid value’....”
While there is no substantial evidence of malice to sustain a conviction of murder of the second degree, a new trial is not required. Since there is overwhelming evidence that defendant was guilty of involuntary manslaughter, the provisions of Penal Code section 1260 are applicable. (People v. Steger, 16 Cal.3d 539, 553 [ 128 Cal.Rptr. 161 , 546 P.2d 665 ].) I would modify the judgment by reducing the offense to that of involuntaiy manslaughter (Pen. Code, § 192, subd. 2), affirm the judgment as so modified, and remand the case to the trial court for probation and sentence hearing in light of such modification of the judgment.
A petition for a rehearing was denied September 7, 1977, and appellant’s petition for a hearing by the Supreme Court was denied October 6, 1977. Bird, C. J., and Tobriner, J., were of the opinion that the petition should be granted.
The distinction between a factual situation constituting murder and one constituting involuntary manslaughter is well expressed in the opinion in Commonwealth v. Hall, 322 Mass. 523 [ 78 N.E.2d 644 ], wherein a mother placed her child in an attic and withheld food and liquids from it. The Massachusetts high court, in upholding a conviction of second degree murder, stated ( 78 N.E.2d at p. 647 ): “The jury could have found on the foregoing evidence that the baby died of starvation and dehydration resulting from the intentional conduct of the defendant in placing it in the attic and withholding food and liquids from it. While the precise question seems never to have been decided in this Commonwealth, we have no doubt that such conduct in the circumstances obtaining here would constitute murder at common law. [Fn. omitted.] In Regina v. Hughes, 7 Cox C.C. 301, page 302, Lord Campbell, C. J., said, ‘But it has never been doubted that if death is the directed [.?/c] consequence of the malicious omission of the performance of a duty (as of a mother to nourish her infant child) this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter.’ This statement is supported by numerous authorities in England and in the United States. Regina v. Bubb, 4 Cox C.C. 455; Regina v. Conde, 10-Cox C.C. 547, 549; Regina v. Handley, 13 Cox C.C. 79; Rex v. Gibbins (1918) 13 Cr.App.Rep. 134; Lewis v. State, 72 Ga. 164 , 53 Am.Rep. 835 ; State v. Barnes, 141 Tenn. 469 , 212 S.W. 100 ; Gibson v. *623 Commonwealth, 106 Ky. 360 , 50 S.W. 532 , 90 Am.St.Rep. 230 ; Pallis v. State, 123 Ala. 12 , 26 So. 339 , 82 Am.St.Rep. 106 . See annotation in 61 L.R.A. 290 . See also Bishop on Criminal Law, 9th Ed., § 686; Wharton’s Criminal Law, 12th ed., § 485.” (See Annot: Homicide by Withholding Food, Clothing, or Shelter, 61 A.L.R.3d 1207 , 1217.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9729040. Public record. Not legal advice.