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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Kathleen Kevin HAWKINS, Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Allen HAWKINS, Defendant and Appellant.

AO35669, AO36752.

Decided: May 20, 1988

Gary Brett Beeler, Turner & Beeler, San Ramon, for defendant/appellant, Kathleen Hawkins. Frank O. Bell, Jr., State Public Defender, William T. Lowe, San Francisco, for defendant/appellant, Richard Hawkins. John K. Van de Kamp, Steve White, John H. Sugiyama, Stan M. Helfman, Jeffrey M. Bryant, San Francisco, for plaintiff/respondent.

Richard Hawkins and Kathleen Hawkins (hereafter Richard, Kathleen, or appellants) appeal from convictions for dependent adult abuse under Penal Code section 368, subdivision (a).   The two appeals have been consolidated “for purposes of briefing, oral argument and decision.”

The victim in this case was Rozella Hawkins, a woman in her mid-eighties and the mother of appellant Richard Hawkins.   For many years she had lived with her husband in a two-story house in Antioch, California.   When the latter was taken to a convalescent hospital about five years ago, Richard and his wife and children moved into the house to live with her.   A family practitioner, Dr. Abe Kaplan, had treated Rozella on several occasions since 1982.   He recalls that she was a lively and responsive person, “very high on how well she was doing, at her age․”  But when Richard brought her in for examination on January 17, 1985, she was slower to respond.   Sensing a decline in her condition, Kaplan recommended that she be placed in Lone Tree Convalescent Hospital, the nursing home where her husband resided.   Richard agreed and contacted the hospital to arrange for her admission.   But Rozella was never taken to the hospital.   When a member of the staff inquired as to the apparent change of plans, Kathleen informed her that Rozella would be cared for at home.   At trial there was conflicting testimony as to the reason for the decision.   Richard testified that Rozella was unwilling to enter the home.   The state points to evidence suggesting a financial motive.   Rozella was the payee of $694 per month in Social Security benefits, which was deposited in a checking account held jointly with Richard.

The fragmentary evidence concerning the next four months indicates that Rozelle experienced a steep decline in mental and physical condition, abetted by neglect.   As part of the shut-in ministry of the Emanuel Baptist Church, Edna Westberry visited Rozella three to four times a month.   In January and February 1985, Ms. Westberry noticed that she seemed weaker and remained in bed after a fall.   The house was “littered and cluttered and dirty” and emitted the odor of a “dog kennel.”  “A lot of animals” were “milling around.”   When refused entry into the house in late February, Ms. Westberry interceded with her pastor, the Reverend Charles Bradshaw, who visited Rozella two days later.   He reported, “[s]he was very thin.   Her legs were swollen and discolored.”   She responded to his questions “with a nod or shake of her head and weak answers.”   The house was “in great disarray” and smelled strongly of “animal feces and urine.”   As he walked through the living room his feet “were sticking to the floor,” prompting him to clean his shoes after he left the premises.   The next month an officer in the Antioch Police Department visited the house for a “welfare check.”   Although he did not cross the threshold, he noticed “a dirty, putrid type of odor, a very strong stench,” emanating from the house.

On April 18, 1985, Richard again took Rozella to Dr. Kaplan who noticed a severe change in her condition.   She had “much wasting of the muscles” and appeared “very, very dehydrated” and badly malnourished.   He discovered that she suffered from “multiple bedsores” that were as severe and extensive as any he had ever seen on a patient.   She was responsive enough to “reply to a direction, but there was no communication possible with her.”   Upon Kaplan's advice, Rozella was taken the next day to Lone Tree Convalescent Hospital.   The nurse entrusted with her care reported that she was wearing a nightshirt which was wet in places and stained with feces and which “smelled very badly.”   When bathed, she appeared dirty and malodorous “like someone that hasn't been bathed for a long time.”   Dried feces adhered to her rectum and her fingernails were extremely long and dirty.   Most ominously, “she had open sores all over her body.   Some were red.”   Two sores on her buttocks “were very large, and they were black.”

After being bathed, Rozella was taken by ambulance to the emergency room at Delta Hospital, where she was initially examined by Dr. James Lynch.   On the witness stand he testified:  “The two most striking things were one, her severely deteriorated general, physical appearance, and the presence of large-multiple large bedsores or decubitis ulcers.”   Rectal examination revealed “huge masses of stool, very hard, impacted, in the rectum.”   Laboratory tests showed severe imbalance of body chemicals symptomatic of malnourishment and dehydration.   She was “confused” and incapable of responding to inquiries about her condition.   Her attending physician, Dr. Keshara Prasad, also testified that she was very severely malnourished.   He had, he testified, seen patients in as poor a condition in India, but never in the United States.   Blood tests disclosed staphylococus infection in her bloodstream and urinary tract and pneumonia in her lungs.   Dr. Prasad believed that these pervasive infections started in the bedsores.   He noted that unsanitary living conditions, particularly the presence of animal urine and fecal matter, could contribute to the spread of infection.

On April 21, 1985, Rozella died.   The autopsy confimed the observations of treating physicians and disclosed the full extent of ulceration caused by bedsores.   The deceased suffered from bronchial pneumonia and showed symptoms of severe dehydration and malnourishment resulting in muscle wasting and chemical imbalance.   Bedsores on the lower back, both hips, left foot, and right calf, knee, and ankle extended downward to or near the underlying bone.   The largest bedsores were almost five inches in diameter and showed areas of blackening caused by skin death.   Noting that bedsore ulcerations are a source of infection, the pathologist conducting the autopsy concluded that “they were one of the primary causes of deaths.”

Two days after Rozella's death, Robert Low, a detective in the Antioch Police Department, inspected appellant's home and provided a vivid description of living conditions.   There was “a very strong urine smell about the house” and stains on the floor and carpets.   Fecal matter lay “all over the floor/ground, in the carpet, in piles in various places.”   The dining room area was “liberally scattered” with feces, but they were “more concentrated along the wall, the wall areas than in the center of the floor.”   Detective Low's feet tended to stick to the floor, and like Reverend Bradshaw, he cleaned his shoes upon leaving.   The kitchen was cluttered with unwashed dishes and food stuffs and contained several rat cages.   Fecal matter surrounded the cages and lay on the floor.

On this appeal, both Richard and Kathleen Hawkins attack Penal Code section 368 as void for vagueness.   The language of the statute is identical to the child abuse statute, Penal Code section 273a, subdivision (1), with the exception that it applies to dependent adults rather than to children.   Section 273a, subdivision (1), has repeatedly withstood similar constitutional challenges.   Most recently, in People v. Smith (1984) 35 Cal.3d 798, 810, 201 Cal.Rptr. 311, 678 P.2d 886, the Supreme Court observed, “[a] number of decisions have held that section 273a, subdivision (1), is not void for vagueness.  (People v. Ewing (1977) 72 Cal.App.3d 714, 718 [140 Cal.Rptr. 299];  People v. Harris (1966) 239 Cal.App.2d 393, 397 [48 Cal.Rptr. 677];  People v. Beaugez (1965) 232 Cal.App.2d 650, 657 [43 Cal.Rptr. 28];  People v. Curtiss (1931) 116 Cal.App.Supp. 771, 778-781 [300 P. 801], ․  Under the doctrine of stare decisis, accordingly, we give the cited holdings great weight.”

But appellants raise an issue with respect to Penal Code section 368, subdivision (a), that will rarely be present in child abuse cases under Penal Code section 273a, subdivision (1).   The language common to the two statutes consists of three alternative clauses.   The original version of Penal Code section 368, subdivision (a), in effect in 1985, reads as follows:  “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any dependent adult, with knowledge that he or she is a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any dependent adult, willfully causes or permits the person or health of the dependent adult to be injured, or willfully causes or permits the dependent adult to be placed in a situation such that his or her person or health is endangered, is punishable․”

Appellants challenge only the first clause  1 on the ground that it vaguely defines the class of persons subject to its provisions.   Their objection does not extend to the second and third clauses,2 which apply explicitly to “any person ․ having care or custody of any dependent adult” (or “child”).   Where the defendant is charged with abuse of a person within his “care or custody”-as ordinarily is the case in child abuse prosecutions-the conviction will not present the issue raised in this appeal.

“Today it is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.”  (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.)   Thus, a criminal statute must provide a “fair notice” or “fair warning” of what conduct is prohibited.  (People v. Nguyen (1984) 161 Cal.App.3d 687, 692, 207 Cal.Rptr. 870.)   As Justice Holmes observed, “[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do it a certain line is passed.”   (McBoyle v. United States (1931) 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816.)   The statute, moreover, must “ ‘establish minimal guidelines to govern law enforcement.’  [Citation.]  Where the legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ”  (Kolender v. Lawson (1983) 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903.)

In its broadest terms, the language of section 368 applies to any person who “permits” a dependent adult to “suffer.”   However, judicial interpretation of section 273a, the statute on which it is modeled, has established that the language requires criminal negligence.  (People v. Pointer (1984) 151 Cal.App.3d 1128, 1134, 199 Cal.Rptr. 357;  Cline v. Superior Court (1982) 135 Cal.App.3d 943, 948, 185 Cal.Rptr. 787.)   In People v. Beaugez (1965) 232 Cal.App.2d 650, 658, 43 Cal.Rptr. 28, the court held that the statute extends to a “situation in which serious physical danger or health hazard to the child is reasonably foreseeable.”   In People v. Peabody (1975) 46 Cal.App.3d 43, 48-49, 119 Cal.Rptr. 780, the court adopted the general standard of criminal negligence, holding that a violation of section 273a requires “such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life.”

That the neglect of Rozella rises to the level of criminal conduct we have no doubt.   The more difficult question is that of defining the class of persons subject to a duty of care to prevent “suffering” or “unjustifiable physical pain” of a dependent adult within the meaning of the statute.   As we have noted, the second and third clauses of the statute clearly impose this duty on persons with care and custody of the dependent adult.   But appellant rightly argues that the first clause contains no comparable guidelines.   The requirement that a person act “with knowledge” that the victim is a “dependent adult” adds little precision to the definition of the crime.   If knowledge of the victim's condition were enough to impose a duty of care, mere visitors, such as the Reverend Bradshaw, would be criminally liable for permitting abuse to continue.   The language requiring that a person act “under circumstances or conditions likely to produce great bodily harm or death” perhaps reflects a legislative intent to define a more concrete nexus between an offender and the victim, but this language raises further questions.   Must the offender be something more than a mere bystander?   A reasonable and practical interpretation of legislative intent would seem to call for this conclusion.   But if this is so, the offender's relationship to the victim must differ in some unexplained way from care and custody.   The phrase “care and custody,” applying to the second and third clauses, has no grammatical relationship to the first clause;  if it were intended to apply to the first clause, it clearly would have been inserted at the beginning of the statute.

In this case, the practical dangers of the vague language of the first clause of Penal Code section 368, subdivision (a) were shown when the information charged a temporary resident in the Hawkins' house, Anna Marie Dickerson-as well as the appellants-with dependent adult abuse.   Although the court granted Dickerson's motion of acquittal, the fact that the prosecution believed she could be required to stand trial graphically illustrates the uncertain scope of the statute.   We conclude that the first clause of section 368 is unconstitutionally vague.   The question remains, however, whether this defect will affect the convictions of the appellants.

“[O]ffenders cannot complain of the vagueness of a statute if the conduct with which they are charged falls clearly within its bounds․”  (People v. Weaver (1983) 147 Cal.App.3d Supp. 23, 36, 197 Cal.Rptr. 521;  People v. Smith, supra, 35 Cal.3d 798, 810, 201 Cal.Rptr. 311, 678 P.2d 886;  People v. Nguyen, supra, 161 Cal.App.3d 687, 695, 207 Cal.Rptr. 870.)   Thus, in Bowland v. Municipal Court (1976) 18 Cal.3d 479, 134 Cal.Rptr. 630, 556 P.2d 1081, a group of practicing midwives were charged with unlicensed practice of medicine.   On a writ of mandate, they alleged that the statute was so vague that it could apply to “advice by an unlicensed person that one suffering from a cold administer to himself aspirin and orange juice.”  (Id. at p. 491, 134 Cal.Rptr. 630, 556 P.2d 1081.)   But the court held that, since the statute clearly applied to unlicensed midwives, the defendants could not complain of its vagueness as applied to other possible offenders:  “In examining statutes challenged on vagueness grounds, courts have looked not merely at the hypothetical cases to which the statute has uncertain applicability, but also at the act allegedly committed by the charged defendant.   The presumptive validity of a legislative act militates against invalidating a statute merely ‘․ because difficulty is found in determining whether certain marginal offenses fall within ․ [its] language.  [¶] Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.’  (United States v. National Dairy Corp. (1963) 372 U.S. 29, 32 [83 S.Ct. 594, 597-598, 9 L.Ed.2d 561, 565], citations omitted, italics added;  see also Parker v. Levy (1974) 417 U.S. 733, 756-757 [94 S.Ct. 2547, 2561-2562, 41 L.Ed.2d 439]․  Thus plaintiffs cannot complain of the vagueness of a statute if the conduct with which they are charged falls clearly within its bounds.”  (Id. at p. 492, 134 Cal.Rptr. 630, 556 P.2d 1081.)

Under these principles, a constitutional challenge to the first clause of Penal Code section 368 will not affect the conviction of appellant Richard Hawkins.   The record reveals that the jury could have had no reasonable doubt that Richard assumed care and custody of the victim.   He maintained a joint checking account with his mother and cashed her social security checks each month.   After sending part of the money to pay his father's expenses at the Lone Tree Convalescent Hospital, he would spend the balance on living expenses.   Rozella had no control over the disposition of the money.   Richard assumed responsibility for taking his mother to the doctor and dentist.   In January he filled out her admission forms to the convalescent hospital, and in April he arranged for an appointment with Dr. Kaplan on his day off work.

Taking the witness stand, Richard was asked why his mother remained at home against Dr. Kaplan's recommendation.   He replied, “I decided to continue to take care of her at home because I felt like I was, at that time, I was able to do so.”   In vivid detail, he recounted efforts to feed her through a straw when she was reluctant to take food.   He insisted that he helped her to the bathroom and bathed her when needed.   When she became too weak to walk, he claimed, he carried her.   He said he was concerned about her bedsores and tried several means of relief-shifting her weight from one hip to the other, giving her a water bed, laying her feet on a sheepskin, and rubbing her skin with baby oil.   But he admitted, “it got to the point where I could not care for her enough.”

We hold, however, that Kathleen's conviction must be reversed.   Since Kathleen lived in the same house as her mother-in-law, it might be inferred that she was jointly responsible with her husband for Rozella's care and custody.   But the evidence on this point was very sparse.   In fact, after the presentation of the People's case, she moved for acquittal on the ground that the evidence did not establish that she owed a duty toward the victim on which a charge of criminal negligence could be based.   The closing arguments of her defense counsel portrayed her as a hapless daughter-in-law with limited responsibilities:  “She's not guilty of abusing Rozella Hawkins.   She was a daughter-in-law.   She did what she could.   She did what she was supposed to do for the care of an old woman who at some point died.”   Under this record, we cannot know whether the jury based its verdict on a finding that she had care and custody of the victim or on a finding that she violated the unconstitutionally vague first clause of section 368.

Under the circumstances, we are compelled to reverse Katherine Hawkins' conviction.

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The judgment of conviction of Kathleen Hawkins is reversed and the judgment of conviction of Richard Hawkins is affirmed.

NEWSOM, Acting Presiding Justice.