California Court of Appeals, Second District, First Division
Cal.Rptr.3d 279] Original proceedings; petitions for writ of
prohibitions. George G. Lomeli, Judge. Writs granted. (Los
Angeles County Super. Ct. No. BA445260)
[Copyrighted Material Omitted]
Kuyumjian Firm and Hagop Kuyumjian, Los Angeles, for
Petitioner Kevin Bom.
Albert for Petitioner Patricia Clement.
A. Gutierrez, Montebello, for Petitioner Gregory Merritt.
Palmer and Lance Filer, Long Beach, for Petitioner Stefanie
Lacey, District Attorney, Phyllis Asayama, Deputy District
Attorney, and Kenneth Von Helmolt, Deputy District Attorney
for Real Party in Interest The People.
appearance for Respondent Superior Court of Los Angeles
Petitioners Kevin Bom, Stefanie Rodriguez, Gregory Merritt,
and Patricia Clement were social workers with the Los Angeles
County Department of Children and Family Services (DCFS). In
2012 and 2013, petitioners provided emergency and family
maintenance services to seven-year-old Gabriel F. (Gabriel),
and members of his family. Approximately six weeks after DCFS
closed its case, Gabriel died as a result of child neglect
and severe head trauma inflicted by his mother Pearl F.
(Pearl) and her boyfriend Isauro A. (Tony).
People charged petitioners with felony child abuse (Pen.
Code, § 273a, subd. (a)) and falsifying public records (Gov.
Code, § 6200). At a preliminary hearing, the magistrate held
them to answer the charges. After the People alleged the same
charges by information, the petitioners moved under Penal
Code section 995 to dismiss the information. The trial court
denied the motions, and petitioners timely filed petitions
for a writ of prohibition in this court. (See Pen. Code, §
999a.) We stayed proceedings in the trial court, issued an
order to show cause, and consolidated the petitions for
purposes of argument and this opinion.
the allegations against petitioners under Penal Code section
273a, subdivision (a) are based on their alleged nonfeasance,
the People would be required to prove that the petitioners
either had the duty and ability to control Gabriels abusers
or had custody or control of Gabriel. We conclude that the
petitioners never had the requisite duty to control the
abusers and did not have care or custody of Gabriel for
purposes of Penal Code section 273a, subdivision (a). We
further conclude that the petitioners were not officers
the meaning of Government Code section 6200. There is,
therefore, no probable cause to hold them on charges of
violating those laws and the trial court should have granted
the motions to dismiss. We therefore grant the petitions.
Gabriel was born to Pearl in February 2005. From late 2005
until October 2012, Gabriel lived with Pearls parents. In
October 2012, he began living with Pearl, Pearls boyfriend
Tony, and Pearls two other children, E.F. (age 11 years) and
V.F. (age 9 years). Gabriel began attending [257 Cal.Rptr.3d
280] Summerwind Elementary School that same month.
October 30, 2012, Gabriel told his teacher, Jennifer Garcia
(Garcia), that his mother had hit him on his
"bottom" with a belt buckle, causing him to bleed.
Garcia noticed a bruise about the size of a half-dollar under
Gabriels left eye and another bruise about the same size on
the top of his hand. She called the child protection hotline
of DCFS to report potential abuse. Garcia told the hotline
screener about the bruises she observed and what Gabriel had
told her about being hit by the belt buckle. She said that
Gabriel was worried that his mother would hit him because he
did not understand his homework. Garcia also told the
screener that Gabriel had once pretended to "snort
something off of his desk," suggesting that Gabriel was
being exposed to illicit drug use.
DCFS hotline screener prepared referral documents to initiate
an investigation of Garcias allegations. The documents
included the information provided by Garcia, as well as
reports concerning Pearl from the statewide electronic child
welfare system/case management system known as CWS/CMS. These
records showed that Pearl had a history of illicit drug use
and that the family had been the subject of four prior
referrals to DCFS between 2003 and 2011. DCFS determined that
each prior referral was "[u]nfounded."
assigned Gabriels case to petitioner Rodriguez, a social
worker in the emergency response unit in DCFSs Palmdale
office. Petitioner Bom was Rodriguezs supervisor.
October 31, 2012, Rodriguez called Garcia, and Garcia
repeated to Rodriguez the information she had given the
hotline screener. Rodriguez gave Garcia a telephone number
that Garcia could use to contact Rodriguez directly.
contacted Pearl by phone and arranged to visit the family
home on November 1, 2012. During that visit, Rodriguez
observed that the
three-bedroom apartment had functioning utilities and
adequate food. She saw no drug paraphernalia in the home.
Pearl told Rodriguez she had been a gang member and had a
history of cocaine abuse and alcohol abuse, but had been
clean for over five years. She said she takes a prescription
narcotic for arthritis pain and agreed to drug test. Pearl
said that Gabriels father was in prison and would not be
released for six or seven years. Pearl told Rodriguez that
she suffered from anxiety and depression and previously
received mental health services.
According to Pearl, Gabriel said that his report to Garcia
was motivated by his desire to live with his grandmother
again. Pearl told Rodriguez that Gabriel claims to hear
"little voices" and has aggression issues. She
believed that Gabriel may have mimicked snorting cocaine in
his classroom because he had watched the film
admitted spanking Gabriel with a belt once, and said she did
so because he had been lying and stealing. Rodriguez told
Pearl that spanking a child with an object was inappropriate.
Rodriguez spoke with Pearls children and each said that they
felt safe in the home and denied any abuse, drug use, or
domestic violence in the home. Gabriel denied that Pearl had
spanked him with a belt, and his siblings said they had never
seen Pearl spank Gabriel with any objects. V.F. reported that
her mother spanked her once with a belt. Gabriel said the
bruise on his face was caused by bumping the corner of the
bathroom door when his mother closed it without realizing he
was in the way, and that a scratch on his hand was caused by
falling down. He said that his mother helps him with his
homework and denied that she makes him stay up all [257
Cal.Rptr.3d 281] night to finish it. What he told his
teacher, he explained, was "a joke."
Rodriguez observed a bruise "approximately the size of a
quarter," on Gabriels buttocks and marked the location
of the bruise on a body chart in Gabriels case file.
November 2, 2012, Pearl and Tony submitted to drug tests,
which came back negative.
November 20, 2012, Rodriguez made an unannounced visit to the
family home. Rodriguez reported she did not see any marks or
bruises on the children indicating abuse or neglect. Pearl
told Rodriguez that Gabriel had been behaving better since
Tony asked a deputy sheriff to let Gabriel sit in the back
seat of his patrol car to see what it felt like to be a
November 27, 2012, Garcia noticed that chunks of Gabriels
hair were missing, there were four or five bloody scabs on
his scalp, a cut on his ear,
and he had a bruise the size of a half-dollar under one eye.
Gabriel appeared to be sad and embarrassed.
days later, Garcia telephoned Rodriguez and reported that
Gabriel had a "busted lip" and a "weird"
haircut, and had told Garcia that his mother punched him in
the mouth. Neither Garcia nor Rodriguez reported this
suspected abuse to the DCFS hotline.
that day, Rodriguez visited the family home and observed that
Gabriels hair was cut in a "mohawk" style with
chucks of hair missing, and his lower lip appeared to have a
scabbing blister. Gabriel told Rodriguez that he bit his lip
and cut his own hair in a style to look like a dragon. He
said his mother had not spanked or hit him anywhere on his
body recently and denied that she punched him in the mouth.
Rodriguez did not make any marks on a body chart.
spoke with Gabriels siblings, who denied any physical abuse.
V.F. told Rodriguez that Gabriel injured his lip by falling
on the front steps. Rodriguez also spoke with Gabriels
maternal aunt, who was visiting. The aunt reported that when
Gabriel was younger, he would smear feces on the wall, get in
fights, cut little girls hair, and "bite the family dog
on his private area, and the cats on their ears and
paws." Pearl told Rodriguez that she had spanked Gabriel
twice recently because he misbehaved, but did not use a belt
or other object. Pearl said she was interested in services
for Gabriel to address his behavioral issues.
were no reports or incidents concerning Gabriel during the
next four weeks, and, so far as our record reveals, no
communication between Pearl or Gabriel and any of the
petitioners during that time.
December 27, 2012, Rodriguez presented the case to a social
worker in DCFSs family preservation unit for a possible
transfer, or to "be promoted" to that unit. The
family preservation unit provides family maintenance
services, such as counseling, on a voluntary basis. It is an
alternative to juvenile court dependency proceedings.
connection with the promotion of the case to the family
preservation unit, Rodriguez completed and signed a document
titled "Investigation Narrative
(Investigation/Assessment and Referral Disposition
Findings)," which provided a summary of the referral,
contacts, and family history concerning Gabriels case.
(Boldface and underlining omitted.) The investigation
narrative concluded that the allegations of physical abuse
were "inconclusive," but added an allegation of
"general neglect" based on inappropriate corporal
discipline. (Boldface and underlining omitted.) Based [257
Cal.Rptr.3d 282] on DCFSs risk assessment methods, the
family was placed in a "very high" risk category.
document was prepared on or about December 28, 2012, and
signed by Bom and Rodriguez on January 30, 2013.
Rodriguez also prepared a case plan and family assessment.
The case plan stated that Pearls discipline had been
"rigid and punitive" "to the detriment of the
children," and that her "inappropriate corporal
discipline" substantiated "allegations of general
neglect." The case plan reiterated the statement in the
investigation narrative that the "allegations of
physical abuse are inconclusive." The plan further
stated that the children were "physically healthy,"
and that Pearl was cooperative, motivated to solve the
problems, willing to accept services, and willing to change.
The plan included counseling for Pearl and the children,
physical exams for the children as needed, and contact with a
social worker twice each month.
January 16, 2013, Rodriguez visited the family home and saw
the children, who reported they were doing well. Rodriguez
did not see any bruises or marks indicative of abuse or
neglect and reported that they are "visibly
healthy." Nor did she see any "endangering elements
[in the home] that would be cause for immediate
concern." Pearl told Rodriguez that "things had
been going well" and there were no recent behavioral
issues with Gabriel.
January 29, 2013, Garcia called Rodriguez and reported that
Gabriel had returned to school after a weeks absence with
swelling under one eye and little bruises on his face. Garcia
said that when Gabriel was among other children, he said he
had fallen off his bed while playing with his brother. When
Garcia spoke with Gabriel alone, however, Gabriel told her
that his mother shot him in the face with a BB gun while she
made him do exercises.
Rodriguez spoke by telephone with Pearl, who said that
Gabriel had fallen off the top bunk bed and suffered some
scratches and bruises. Rodriguez visited the family home that
afternoon and observed that Gabriel had small bruises and
slight swelling on his face. Gabriel told Rodriguez that he
had been playing tag with his brother E.F. on the top bunk in
the dark when he pulled away and fell face first onto
bicycles that were stored next to the bed. Gabriel claimed he
gave Garcia the same account and denied telling her that his
mother shot him with a BB gun. Gabriels siblings told
Rodriguez that Gabriel had fallen off the bunk bed and onto
the bicycles. They also denied that someone had shot anyone
with a BB gun.
told Rodriguez she did not know why Gabriel would say she
shot him with a BB gun. Pearl also said that Gabriel had
recently approached her, said he was angry, and began hitting
himself in the face. Rodriguez discussed the family