Appeal from a judgment of the Superior Court of Orange County. Super. Ct. No. C-88586. Hon. Luis Cardenas, Judge.
Crosby, J.; Sills, P.J., and Sonenshine, J., Concurring.
Susan Valerie Heitzman was accused of "elder abuse" in violation of Penal Code section 368, subdivision (a); but the superior court sustained her demurrer, finding the only applicable portion of the statute, the first clause, unconstitutionally vague and overbroad. Defendant's Penal Code section 995 motion was granted as to the other two clauses in subdivision (a) because Heitzman was not a caretaker of the victim, her father. The district attorney appeals both rulings. The demurrer should have been overruled; and we reverse that portion of the judgment accordingly, while affirming the balance.
Robert Heitzman was supported by social security and veteran's pensions totaling approximately $790 per month. Defendant's brothers (and codefendants) lived with their father in Huntington Beach.*fn1 One worked and the other stayed home to handle the household chores and look after the sickly and frail 68-year-old man, who had long suffered from numerous chronic serious illnesses and partial paralysis. Defendant gave up the caretaker role a year earlier and moved, although she frequently spent weekends at the family home.
Heitzman was at the house for Thanksgiving weekend, from November 29 until leaving at 11:30 a.m. on December 3, 1990. She did not see her father all weekend, and the three siblings simply ignored their father the entire time until he was found dead at about 1 p.m on December 3. His bedroom door remained closed because of the smell of urine and feces. He had been left in his bed in his own defecation without food or liquids. It had been months since he had seen a doctor, and his body exhibited numerous severe bed sores. The pathologist believed septic shock from the sores, malnutrition, and neglect caused the death.
Heitzman knew her brothers were poor housekeepers: The house was generally filthy, particularly her father's bed, bedroom, and bathroom. Defendant was also conscious of her father's failing health and believed the out-of-work brother who was supposed to look after his needs was not up to the task. Heitzman was aware her brothers had failed to obtain medical treatment for their father for many months, although she and a social worker raised the issue with them.
The magistrate determined Heitzman was not her father's caretaker. He nonetheless found she breached a duty of care and probable cause to believe she had been grossly negligent. The superior court agreed with the latter finding, but rejected the first because defendant was not the caretaker and Penal Code section 368, subdivision (b) is unconstitutionally vague in that it purports to impose a general duty on all citizens to take affirmative action to assist an elderly or dependent adult who is suffering or at risk.
We will conclude defendant did have a legally cognizable duty based on her filial relationship to the victim. Whether a stranger would have a similar duty is unnecessary to the resolution ...