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 of this case, and we do not decide that question.
Penal Code section 368, subdivision (a) provides, "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years."*fn2 (Italics added.)
The italicized clause of section 368, subdivision (a) is the one applicable here, and it has been criticized in dicta. In People v. McKelvey (1991) 230 Cal. App. 3d 399, 403-404, 281 Cal. Rptr. 359, the second district stated, "When drafting section 368, the Legislature commendably displayed concern for the elderly and the dependent. Regrettably it displayed indifference to clarity. The second clause of section 368 is clear. It punishes those responsible for the custody or care of a dependent adult, who allow or cause the dependent adult to become injured. [P] The first clause of section 368 is uncertain. It does not describe those persons liable for permitting or causing a dependent adult to suffer. The clause appears to include within its reach any and all persons."
"All persons" is exactly what the statute means, according to the district attorney, provided they are "criminally negligent." Although also in dicta (because the defendant was the victim's caretaker), People v. Manis (1992) 10 Cal. App. 4th 110, 114 supports that argument: "We . . . note that a unanimous Supreme Court in People v. Smith (1984) 35 Cal. 3d 798, 809-810, 201 Cal. Rptr. 311, 678 P.2d 886 held, per Justice Mosk, that a child endangerment statute with almost identical wording, [Penal Code] section 273a, subdivision (1), passed constitutional muster.[*fn3] [P] It is true that in McKelvey, supra, the second district, though upholding the conviction in issue [in another caretaker situation], also criticized the wording of section 368 in dicta as 'uncertain.' (230 Cal. App. 3d at pp. 403-404.) We agree that the clause criticized in McKelvey ('Any person who . . . willfully . . . permits any . . . dependent adult . . . to suffer . . . .') could perhaps be improved; as written, appellant contends the statute would seem to criminalize the conduct of a passerby who does not take action to help an elder ...