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California Supreme Court:
All Murders-by-Poison Are Not in the First Degree
Court Unanimously Eschews Literal Reading of Penal Code §189
By a MetNews Staff Writer
The California Supreme Court held yesterday, in a unanimous opinion, that, despite the wording of Penal Code §189, a murder-by-poison is not necessarily in the first degree.
Justice Joshua P. Groban wrote the opinion. It reverses the first-degree murder conviction of Heather Rose Brown whose five-day-old daughter died on Nov. 3, 2014 from poison: the morphine and methamphetamine in the mother’s milk fed to her infant.
At the time of the death, §189 read:
“All murder which is perpetrated by means of…poison…is murder of the first degree. All other kinds of murders are of the second degree.”
(The first sentence is now subd. (a) and the second sentence is subd. (b).)
Reading §189 literally, the Third District Court of Appeal on July 16, 2019 said in an opinion by Justice Elana Duarte affirming Brown’s conviction that the cases it reviewed “reject the view that, to be guilty of first degree murder by poison, the administration of poison itself must be willful, deliberate, and premeditated,” declaring:
“Rather, it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.”
Prosecution’s Burden
Rejecting that view, Groban said in yesterday’s opinion:
“[S]ince in a typical first degree murder by poison case there is no question that the defendant acted with willfulness, deliberation, and premeditation, we have never addressed whether there is a mental state component of first degree poison murder. We now clarify that to prove first degree murder by means of poison, the prosecution must show the defendant deliberately gave the victim poison with the intent to kill the victim or inflict injury likely to cause death.”
The instructions by Shasta Superior Court Judge Stephen H. Baker did not include that intent requirement which, Groban said, weas error, adding:
“And because a rational jury could have concluded the prosecution did not prove beyond a reasonable doubt that Brown deliberately gave her newborn daughter the poisonous substances in her breast milk with the intent to kill her or inflict injury likely to cause her death, the error was prejudicial.”
Rephrasing the holding, Groban said:
“[W]e hold that to elevate a murder to the first degree, it is not enough for the prosecution to prove the use of poison was a substantial cause of the victim’s death; instead, the prosecution must prove the defendant deliberately gave the victim poison with the intent to kill the victim or inflict injury likely to cause the victim’s death.”
Analogous Elements
Sec. 189 also specifies that murders by means of “torture” and “lying in wait” are in the first degree. Groban pointed out:
“We previously have interpreted this language to require proof of a mental state more culpable than the malice required for second degree murder, in keeping with the Legislature’s determination that murders perpetrated by these means warrant the greater punishment reserved for first degree murder.”
He reasoned:
“Since first degree murder by poison shares a legislative history and purpose with first degree murder by lying in wait and by torture, it would be incongruous not to read a similar state of mind requirement—one equivalent in turpitude to willful, deliberate, premeditated intent to kill—into first degree poison murder.”
Groban said in a footnote:
“Our disposition leaves intact Brown’s conviction of child abuse…with an enhancement for willful harm or injury resulting in the death of a child…, along with her convictions of possession of a controlled substance for sale…and possession of marijuana for sale….The parties debate whether there is a legal basis for the trial court to accept a reduction of the first degree murder conviction to second degree murder if the prosecution decides not to retry the first degree murder charge….We express no view on this question.”
The delivery of Brown’s baby took place in a hotel room, with the assistance of a midwife. The parents avoided a hospital for fear the baby would be taken from them upon ascertainment that the mother was a drug addict and, for the same reason, did not take the child to a doctor when she became ill.
Daylon Michael Reed, the child’s father, in 2016 pled guilty to various offenses, including felony child abuse, in connection with the death and received an 18-year prison sentence.
Groban’s opinion came in People v. Brown, 2023 S.O.S. 779.
In a second case decided by the California Supreme Court yesterday, Justice Goodwin H. Liu wrote for a unanimous court in declaring that Siskiyou Superior Court Judge Robert F. Kaster erred in enhancing a sentence for battery based on his finding that there had been a “great bodily injury” (“GBI”) where the jury had deadlocked on that issue. It did find that there had been a serious bodily injury (“SBI”).
The Third District Court of Appeal on Aug. 25, 2021, denied a petition for a writ of habeas corpus sought by Miguel Angel Cabrera based on ineffective assistance of appellate counsel in light of the lawyer’s failure, in his appeal, to SIB challenge the sentence enhancement under the U.S. Supreme Court’s 2000 decision in Apprendi v. New Jersey. The Supreme Court said in that case:
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Then-Presiding Justice Vance W. Raye wrote for the Third District in saying:
“Given established law on the equivalence between SBI and GBI…, appellate counsel’s performance cannot be deemed deficient for failure to raise an Apprendi claim with little chance of success.”
In his opinion reversing the Third District, Lui wrote:
“Whether an injury satisfies the current definition of great bodily injury—i.e., whether the injury is ‘significant or substantial’…—is for the jury to determine case by case. What matters here is whether a jury could reasonably apply the statutory definitions of great bodily injury and serious bodily injury and find that an injury was serious but not great bodily injury.”
The justice declared:
“The sentencing court’s finding of great bodily injury violated Cabrera’s Sixth Amendment jury trial rights under Apprendi.
The matter was remanded for further proceedings.
The case is In re Cabrera, S271178.
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