People v. Preller

In People v. Preller (1997) 54 Cal.App.4th 93, in rejecting the defendant's argument that the force used must be likely to result in death, the court stated: "The statute, under the defendant's interpretation, does not require that the child actually be killed, or even injured. For example, if a caretaker pointed a gun at a child and fired from a short distance, but somehow missed, a jury might conclude the caretaker assaulted the child by means of force likely to cause death, not to mention great bodily injury." (Id. at p. 97.) The Preller court found this interpretation unreasonable and explained: "If the Legislature had meant for 'resulting in the child's death' to modify 'great bodily injury,' it would not have placed a comma after 'great bodily injury.' Thus, it would have referred to an assault by means of force that to a reasonable person would be likely to produce great bodily injury resulting in the child's death. Instead, it inserted a comma and changed the meaning, detaching 'resulting in the child's death' from 'great bodily injury.' Thus, the force must be likely, in the mind of a reasonable person, to produce great bodily injury and the force must result in the child's death." (Id. at pp. 97-98.) The Preller court characterized section 273ab as a "murder statute." (Preller, at p. 97.)