Whitehurst

Defendant was charged with two counts of inflicting corporal punishment on a child resulting in a traumatic condition (Pen. Code, § 273d), the first count involving Natalie P. and the second count Stephen W. After a jury trial, he was convicted of misdemeanor battery (§ 242) on count I and was acquitted on count II. Imposition of sentence was suspended and defendant was placed on three years’ probation.

On appeal he raises three instructional errors: (1) the court erred in failing to instruct sua sponte on a parent’s right to discipline a child; (2) the court erred in failing to instruct on the lesser included offense of misdemeanor child beating (§ 273a, subd. (2)); and (3) the court erred in instructing on prior bad acts. We find merit to the first contention and therefore reverse.

Facts

On the morning of September 26, 1990, defendant and his wife, Donna Whitehurst, were sitting at the table in their home in Murrietta discussing custody arrangements regarding defendant’s natural son, Stephen. Donna was planning on taking Stephen as well as Donna’s five children from a prior marriage and leaving defendant.

While they were discussing custody of Stephen, Natalie,…