PEOPLE v. HEITZMAN (1993)

OPINION

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.

I

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.¹  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.

II

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.” ²  (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.  [¶] 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, 12 Cal.Rptr.2d 619 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.³ [¶] 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, 281 Cal.Rptr. 359.)   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 who is in pain.   It was for precisely this reason that the fifth district in [People v. Superior Court (Holvey), supra, 205 Cal.App.3d 51, 60, 252 Cal.Rptr. 335] closed the statutory gap, by a process of limiting interpretation, so as to construe the statute as reaching only ‘criminal negligence.’ ”

Holvey is not on point here, however.   That case involved the criminal prosecution of two doctors and a nurse.   The only facts before the Court of Appeal were the thin allegations of a criminal complaint killed by demurrer in the municipal court and revived in the superior court via writ of prohibition.   The complaint alleged that all three defendants were the victim's caretakers.  (People v. Superior Court (Holvey), supra, 205 Cal.App.3d at p. 54, 252 Cal.Rptr. 335.)   And the court specifically noted, “The complaint clearly charges a violation of [the second clause of Penal Code section 368, subdivision (a) ].   Thus, the ruling of the trial court analyzing other portions of the statute, for example, the terms ‘suffer’ and ‘endanger,’ is superfluous to the issue posed to this court.   This applies equally to the arguments of the [amicus California Medical Association] that apply to the other clauses.”  (Id. at p. 58, 252 Cal.Rptr. 335.)

The defense and amicus in Holvey sought a decision that the medical profession was not given fair warning of what was prohibited by section 368, subdivision (a) in the treatment of the elderly.   The Court of Appeal's answer was an attempt to interpret the statute to avoid the objection:  Only behavior amounting to criminal negligence, held the court, would support prosecution.   The panel stated, “Criminal negligence ‘means that the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care;  it must be 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.’  [Citation.]”  (People v. Superior Court (Holvey), supra, 205 Cal.App.3d at p. 60, 252 Cal.Rptr. 335.)

Because both lower courts found Heitzman was criminally negligent, Holvey would superficially appear to resolve this case, as the district attorney claims.   The problem is, criminal negligence presupposes some duty of care toward the victim.   Defendant was not her father's caretaker, and her contribution to his demise was purely one of inaction.   Thus, in order to resolve her potential liability with respect to the first clause of section 368, subdivision (a), we must decide whether she had a duty to act at all.

In the municipal court proceedings, the district attorney asserted defendant bore a duty as the daughter of the victim.   Since, he has virtually abandoned this position,⁴ seemingly cowed by the defense argument that the filial relationship did not distinguish Heitzman from any unrelated weekend guest with similar knowledge or even a delivery person who happened to become acquainted with the peril to the victim in a business visit to the premises.

We leave to another day the question of whether liability could be found with respect to individuals who are not caretakers or relatives, although a few courts have found, and various scholars have advocated, a duty to act where a stranger is in imminent danger of physical harm and the defendant can render aid at little cost or personal risk.  (Soldano v. O'Daniels (1983) 141 Cal.App.3d 443, 453–455, 190 Cal.Rptr. 310; ⁵  Prosser, Law of Torts (4th ed. 1971) § 56, pp. 340–341;  see also Williams v. State of California (1983) 34 Cal.3d 18, 23–24, 192 Cal.Rptr. 233, 664 P.2d 137;  Stangle v. Fireman's Fund Ins. Co. (1988) 198 Cal.App.3d 971, 974, 244 Cal.Rptr. 103;  Clarke v. Hoek (1985) 174 Cal.App.3d 208, 215, 219 Cal.Rptr. 845;  Rest.2d Torts, §§ 314, 323, 324.)   Instead, we hold the district attorney's original position was, at least in part, correct:  A daughter of a pensioner father is different from a mere stranger.   She has a duty to act, and to act without gross negligence, in the face of a threat to her father's well being.   As we will explain, that duty is based on the special relationship between a parent in need and a child able to help, a duty codified in the law of this state.⁶  (Civ.Code, §§ 206, 242;  Pen.Code, § 270c.)   This is hardly a remarkable conclusion:  Similar duties of care founded on a variety of special relationships have been recognized in our decisional law.  (See, e.g., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, fn. 5, 131 Cal.Rptr. 14, 551 P.2d 334;  Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352;  Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508;  Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 253 P.2d 675.)

Civil Code section 206 provides, “It is the duty of the father, the mother, and the children of any person in need who is unable to maintain himself by work, to maintain such person to the extent of their ability.   The promise of an adult child to pay [a third party] for necessaries previously furnished to such parent is binding.   A person who is receiving aid to the aged shall be deemed to be a person in need who is unable to maintain himself by work.” ⁷  It is a crime to evade this duty:  “Except as provided in Section 206.5 of the Civil Code, every adult child who, having the ability so to do, fails to provide necessary food, clothing, shelter, or medical attendance for an indigent parent, is guilty of a misdemeanor.” ⁸  (Pen.Code, § 270c.)   The obvious dovetailing of the Penal and Civil Code provisions persuades us that “indigent” in Penal Code section 270c is shorthand for the parent described in section 206:  a person receiving “aid to the aged,” but “unable to maintain himself by work.”

Decedent Robert Heitzman was an invalid unable to work, living on social security and a veteran's pension.   His daughter was required to maintain him “to the extent of [her] ability․”  She had that ability because she knew of the peril and knew, from her own experience, what was necessary to properly care for her father.   Consequently, we conclude the present record demonstrates Heitzman owed her father at least the minimal duty of care required to avoid gross negligence.⁹  Penal Code section 368, subdivision (a) may be subject to a vagueness attack if a stranger to the victim, or the child of a wealthy parent,¹⁰ is ever prosecuted under it (but see Soldano v. O'Daniels, supra, 141 Cal.App.3d 443, 190 Cal.Rptr. 310);  but that is not this case.

Defendant has abandoned the superior court's overbreadth finding in her favor on appeal.   For that reason, those stated in People v. Manis, supra, 10 Cal.App.4th at page 116, 12 Cal.Rptr.2d 619, and the quoted discussion above limiting elder abuse prosecutions to the criminally negligent, we hold the court erred in that determination as well.  (See also Bowland v. Municipal Court (1976) 18 Cal.3d 479, 493–494, 134 Cal.Rptr. 630, 556 P.2d 1081;  People v. Superior Court (Holvey), supra, 205 Cal.App.3d at p. 62, 252 Cal.Rptr. 335.)

Although the court's language in granting the Penal Code section 995 motion is somewhat impenetrable (and the clerk's minutes worse), we understand it to mean that Heitzman may not be tried on alleged violations of the other clauses of Penal Code section 368, subdivision (a) because she was not her father's caretaker.   That ruling was correct and will remain undisturbed.

The judgment is affirmed with respect to the Penal Code 995 motion only and reversed with directions to overrule the demurrer and proceed in accordance with the views expressed above.

FOOTNOTES

1.   We deal with evidence adduced at the preliminary hearing in the main, rather than the boilerplate allegations of the information, notwithstanding that our primary focus is a sustained demurrer.   There are various reasons why:  First, this is the way the parties elected to present the matter.   Second, as this case illustrates, constitutional attacks on vagueness grounds can be difficult to resolve in a factual vacuum because courts should avoid tilting at windmills by deciding hypothetical and extreme cases that may never arise.  (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 765, 221 Cal.Rptr. 779, 710 P.2d 845.)   Third, although there is much loose language in the reports to the effect that demurrers in felony prosecutions only look to the face of the pleadings (see, e.g., People v. Muniz (1970) 4 Cal.App.3d 562, 568, fn. 3, 84 Cal.Rptr. 501), the better rule is that the indictment or information should be considered in light of the grand jury or preliminary hearing transcript.  (People v. Jackson (1978) 88 Cal.App.3d 490, 500–501, 151 Cal.Rptr. 688;  People v. Jordan (1971) 19 Cal.App.3d 362, 369–370, 97 Cal.Rptr. 570.)   Those transcripts supplement the accusatory pleading and put the defendant on notice as to the specifics of the crimes charged.

2.   “Elder” is described in Penal Code section 368, subdivision (d) as a person over 65 years of age.  “Dependent adult” is defined in subdivision (e):  “any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights․”

3.    Penal Code section 273a, subdivision (1) then provided, “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding 1 year, or in the state prison for not less than 1 year nor more than 10 years.”Manis overstates the case in the context of the parallel first clauses of Penal Code sections 273a, subdivision (1) and 368, subdivision (a).   The vagueness attack in the Supreme Court's Smith decision was by the mother of a battered child on the phrases, “unjustifiable physical pain or mental suffering” and “cruel or inhuman corporal punishment or injury resulting in a traumatic condition.”   Except in the most general terms the court's vagueness discussion would appear inapplicable to the question presented here:  Under what circumstances, if any, may a non-caretaker be held responsible for a failure to act?The Court of Appeal in People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 59, 252 Cal.Rptr. 335 claimed the opinions relied upon in Smith as stare decisis “addressed the first and third clauses.”   We find none dealing with the specific vagueness claim urged here, though.   Some of the decisions cited in Smith (at 35 Cal.3d at p. 810, 201 Cal.Rptr. 311, 678 P.2d 886) involved the live-in boyfriends of the mothers of battered children, but none of the men appears to have been a passive onlooker who merely failed to intervene to prevent harm to the child by another.

4.   The district attorney's change of position was apparently inspired by an opinion from division one of this court, Marhoefer v. Nacozy (1991) [formerly at 1 Cal.App.4th 1002, 2 Cal.Rptr.2d 466].   That decision was ordered depublished by the Supreme Court, however, on March 12, 1992, about three weeks before defendant's demurrer was heard and decided.   Nevertheless, it is referenced in the district attorney's October 28, 1992 opening brief on appeal (suggesting the prosecution remains unaware of the removal of that cloud over its case).   Ironically, though, the argument accompanying the district attorney's citation to Marhoefer is that the standard of care applicable to part one of Penal Code section 368, subdivision (a) is not what a reasonable person would do, “but what would be expected of a reasonable son or daughter.”   Thus, the district attorney has, albeit feebly, raised the point upon which this appeal must be decided.

5.   In Soldano the Court of Appeal answered the following question in the affirmative:  “Does a business establishment incur liability for wrongful death if it denies use of its telephone to a good samaritan who explains [there is] an emergency situation occurring without [the premises] and wishes to call the police?”  (Soldano v. O'Daniels, supra, 141 Cal.App.3d at p. 445, 190 Cal.Rptr. 310.)

6.   In its present form, the information is arguably technically deficient in failing to allege the filial relationship and the father's pensioner status;  but the demurrer was not brought on those grounds, of course.   And the preliminary hearing transcript put Heitzman on notice of the prosecution evidence concerning the parent-child relationship and decedent's reliance on pensions.  (See fn. 1 above)

7.   In addition, Civil Code section 242 provides in part, “Every individual shall support ․ his or her parent when in need.”

8.   Section 206.5 releases formerly abandoned children from the obligation to support a parent.

9.   For this reason we need not discuss defendant's attempt to analogize this case to those involving prosecutions of persons merely present in places where narcotics are being used.  (Health & Saf.Code, § 11365;  see In re Elisabeth H. (1971) 20 Cal.App.3d 323, 97 Cal.Rptr. 565.)   Heitzman was not an uninvolved bystander.   Unlike an ordinary witness to a crime, she did not have the option to ignore what was taking place on the last weekend of her father's life without becoming responsible herself.

10.   Infirm parents with means would presumably hire competent caretakers and that would be the end of it.   What of the daughter who finds a wealthy parent in peril on a visit and fails to intervene?   Our suggestion is that she summon aid, for the law may well hold her accountable for the reasons given in Soldano v. O'Daniels, supra, 141 Cal.App.3d 443, 190 Cal.Rptr. 310.   This observation is not part of today's decision, though.

CROSBY, Associate Justice.

SILLS, P.J., and SONENSHINE, J., concur.