Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF131640. Elisabeth Sichel, Judge.
Rod Pacheco, District Attorney, and Jacqueline Jackson, Deputy District Attorney, for Plaintiff and Appellant.
David Joseph Macher for Defendant and Respondent.
OPINION
King J.
After a preliminary hearing, the magistrate held defendant to answer for one count of felony child abuse. (Pen. Code, § 273a, subd. (a).) Defendant filed a section 995 motion to set aside the information, alleging probable cause failed to support the charge. The trial court granted defendant’s motion, determining that there was no probable cause that defendant acted with the requisite “culpable state of mind.” The People appeal. We find that no evidence supported the contention that defendant acted with criminal negligence and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
On Wednesday, April 19, 2006, defendant and her three-year-old daughter arrived at the home of Tsai-Yen Chou sometime between 6:10 and 6:30 p.m. Chou held Bible study groups at her home every other Wednesday, which defendant had been attending for somewhere between the past six weeks to three years. Parents often brought their children with them to the weekly Bible studies; in fact, between 10 to 12 children were present that night. The adults sat down to eat dinner first. While the adults were eating, the children played in the backyard. Chou’s backyard had a patio with play equipment and a pool which was encircled on three sides by a six-foot wrought-iron fence and on the fourth side by a wooden fence. Three 3-foot tall gates with self-closing springs led into the pool area. Chou testified that she did not know that any of the gates were not functioning properly until after the instant incident. She first became aware that one of the gates was not working when the detective informed her of this, after the detective arrived at her house on the evening of the drowning. Detective Roberta Hopewell testified that on the night of the drowning she went to the hospital to interview the defendant. When Detective Hopewell arrived at the hospital there were a lot of people present, including relatives and friends. During this interview, defendant told Hopewell that she knew the gates to the pool did not work.
At some point while the children were playing in the backyard, some of them made their way into the pool area. Detective Dennis Dodson testified that Chou told him she “was watching out through the rear window and saw some children in the pool area.” He testified she told him she then asked the adults if their children knew how to swim. One of the parents responded that his or her children could not swim; therefore, Chou made her way into the pool area, forced the children to exit the pool area, and secured the gate. Chou testified that she had the children secure the gate. Detective Hopewell testified that defendant told her defendant’s daughter did not know how to swim and she expressed concern regarding the children’s access to the pool to Chou.
Thereafter, the children sat down to eat. At approximately 7:00 p.m. the adults began their Bible study in an area towards the front of the house from which they could not see the pool area. Chou’s husband put a movie on for the children in the family room, which was adjacent to the sliding glass door leading into the backyard. Some of the children sat inside to watch the movie, while others went outside to the play area in the backyard. At 7:30 p.m., defendant’s daughter came into the room in which the Bible study was held and asked defendant for help putting on her jacket and shoes so that she could go outside to play. Detective Dodson testified that Chou told him defendant allowed her daughter to go outside. Detective Hopewell testified that defendant initially told her that she did not permit her daughter to go outside. However, in a subsequent interview, defendant informed Detective Hopewell that she did. Chou, likewise, testified that defendant allowed her daughter to go outside. Defendant remained at the table.
No specific adult was responsible for watching over the children. Chou encourages adult participants to pay close attention to the Bible study and to remain in the immediate area. However, adults were constantly walking between the kitchen, dining room, and family room. During the course of the evening there were at least one or two adults in the kitchen or family room at all times. Nonetheless, each parent was responsible for watching over their own children. At no time did Chou see any adults outside.
Cong Cong Zhang testified that she dropped off two of her children, ages 5 and 10, at Chou’s home at 5:30 p.m. that day. She returned with her other child at 8:00 p.m. As she entered through the front door she saw defendant’s daughter. Zhang then ate and joined in the Bible study. At 8:30 p.m. she left. Prior to leaving, she looked around the house for her children. While looking for her children, she initially went into the family room, but did not see any adults inside. Thereafter, she gathered her children from the backyard play area. She did not notice any of the gates to the swimming pool open. Other children were also playing in the backyard.
At some point between 8:30 and 8:45 p.m. someone in the backyard screamed. Chou ran into the pool area of the backyard where she saw defendant’s daughter floating in the pool. Chou jumped into the pool to extricate defendant’s daughter. Chou’s husband administered CPR. Someone called 911; thereafter, Chou flagged down the arriving paramedics. The cause of defendant’s daughter’s death was determined to be drowning. Subsequent investigation revealed that the self-closing springs on two of the three entry gates leading into the pool area were malfunctioning.
II. DISCUSSION
On review of an order granting a section 995 motion, we examine the record to determine if the evidence is sufficient to support the offense charged in the information. (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1225.) Neither the judge hearing the section 995 motion nor the appellate court may reweigh the evidence or determine the credibility of witnesses. If some evidence supports the offense charged in the information, the reviewing court will not look into its sufficiency. An information should be set aside only when there is a complete lack of evidence to support a necessary element of the offense charged. The prosecution of the charge will not be prohibited “‘“‘if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’”’ [Citation.] [¶] We review the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial court’s ruling was reasonable. [Citations.]” (People v. Superior Court (Jurado), supra, at p. 1226.)
The People maintain that the evidence before the judge was sufficient to support the count. In order to determine the validity of such contention, we look first to the elements of child abuse as defined by statute and case law. In pertinent part, section 273a, subdivision (a) penalizes “[a]ny 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 that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered. . . .” Where the defendant does not, herself, inflict injuries upon the victim, conviction under the statute requires that the defendant have willfully caused or permitted the placement of the victim in a situation which is likely to produce great bodily injury or death. (People v. Valdez (2002) 27 Cal.4th 778, 787-788.) “‘[L]ikely’ as used in section 273a means a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.)
“[S]ection 273a, subdivision (a) sets forth a standard of conduct that is rigorous. Ordinary negligence will not suffice. Specifically, criminal negligence involves ‘“a higher degree of negligence than is required to establish negligent default on a mere civil issue. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.”’ [Citation]” (People v. Valdez, supra, 27 Cal.4th at p. 788.)
“‘Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. [Citation.] The act must be one which has knowable and apparent potentialities for . . . death [or great bodily injury]. Mere inattention or mistake in judgment . . . is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life.’” (People v. Peabody (1975) 46 Cal.App.3d 43, 47, quoting People v. Rodriguez (1960) 186 Cal.App.2d 433, 440.)
A review of some of the cases finding child endangerment through indirect or passive conduct demonstrates that the degree of behavior necessary to establish criminal negligence is far beyond that evident in the present case. In People v. Odom (1991) 226 Cal.App.3d 1028, a search of the defendant’s home in which two children (ages nine and seven) were found, revealed twelve guns, three of which were loaded. (Id. at p. 1031.) Inside and surrounding the home were numerous dangerous and improperly stored chemicals and appliances for use in the manufacture of methamphetamine. (Ibid.) Illegal electrical wiring was strung throughout the home. (Ibid.) There were holes in the roof, bars on the windows with no safety release, no food in the kitchen, an inoperable kitchen sink, dog feces throughout the home, spoiled food and trash, and four snakes. (Id. at pp. 1031, 1033-1034.) In People v. Toney (1999) 76 Cal.App.4th 618, a search of the defendant’s home revealed numerous chemicals for use in the manufacture of methamphetamine, including a bucket on the floor containing a chemical which could melt skin on contact. (Id. at p. 620.) Defendant’s six-year-old stepson resided in the home on weekends. (Id. at p. 621.) In Walker v. Superior Court (1988) 47 Cal.3d 112, the defendant believed prayer alone would cure her child’s bacterial meningitis, resulting in the child’s death. (Id. at p. 119.)
Here, there is a complete lack of evidence on the requisite mens rea for the charged offense. Nothing here indicates defendant acted with knowledge, viewed either objectively or subjectively, that her actions posed “a serious and well-founded risk” to the life of her daughter. Defendant had been to the Chous’ home on numerous prior occasions, so she was aware of the property’s set-up, pool and all. Defendant’s husband testified that prior to the instant incident, he was unaware of any dangerous condition on the Chous’ property. There was no evidence that Chou, the owner of the premises, was aware that the gates were not functioning properly prior to the drowning. Furthermore, there is no evidence that prior to the drowning defendant had any knowledge that the gates were not working properly. While defendant may have expressed concern to Chou regarding her daughter’s access to the pool since she could not swim, the context of the testimony fails to indicate when this conversation occurred. Indeed, the circumstances suggest that, to the extent defendant did express such concern, this may have transpired immediately during or after some of the children made their way into the pool area, in which case such an expression of concern would only be natural. Such concern would likely be dispelled after Chou ensured that the access gates to the pool area had been secured. Moreover, permitting her daughter to go out into the backyard without supervision would be inconsistent with such an expressed concern, unless that trepidation had dissipated due to some action taken to resolve the matter. It is obvious that defendant, along with every other parent present at the Bible study, felt comfortable allowing their children to play in the backyard without supervision. This was not a collective, aberrant departure from the prudent parent standard. Rather, the circumstances show that it was not unreasonable to permit the children to play unsupervised in the backyard.
Neither at the lower court or on appeal do the People argue that defendant knew, prior to the incident, that the gates were not working properly. In fact, in their opposition to defendant’s section 995 motion, the People concede that there is no evidence that defendant inspected the gates or inquired of the Chous as to the working condition of the gates. From the record, it is also clear that the magistrate did not rely on any such fact. Chou did not know the gates were not working properly until after the incident. The only plausible construction of Detective Hopewell’s testimony is that defendant became aware of the problems with the gates after the drowning and before the interview with Detective Hopewell, thus explaining her statement to Detective Hopewell that she knew the gates were not working.
The pool was surrounded by a six-foot tall wrought-iron fence on three sides and a wooden fence in the rear. Three 3-foot tall access gates led into the pool area. Each of these were equipped with self-closing hinges. While the self-closing springs on two of the three entry gates were shown to be faulty, the evidence failed to disclose that defendant was aware of this malfunction prior to permitting her daughter to go into the backyard. Indeed, the evidence demonstrated that Chou had ensured that the gates were all secured after children had initially made their way into the pool area. The Chous’ backyard contained play equipment and other children were playing outside in the play area. While no adult was specifically assigned to supervise the children, adults were consistently walking between the rooms of the house, including the kitchen, dining room, and family room. From these rooms, an adult could see out into the backyard. Thus, by the facts as known to defendant at the time she permitted her daughter to go into the backyard alone, there was no way the three year old could get into the pool area. Indeed, the People failed below to demonstrate precisely how defendant’s daughter got into the pool. No evidence demonstrated that when she was found, any of the entry gates were open. Likewise, there was at least some supervision of the children.
While defendant obviously could have exercised more caution in the supervision of her daughter, her behavior did not rise to the level of criminal negligence. It is true that defendant could have personally inspected each of the entry gates to ensure they were properly latched and not capable of being opened by her daughter. Additionally, defendant could have insisted on adult supervision of the children, both in the family room and the backyard, at all times. Her failure to do so may very well constitute carelessness, inattention, or a mistake in judgment; nonetheless, when considering her actions in the context of the entirety of the circumstances, her behavior did not constitute a reckless disregard for her daughter’s life. Thus, no evidence supported the magistrate’s determination that probable cause supported the charge as pled; hence, the trial judge correctly granted defendant’s motion to set aside the information.
III. DISPOSITION
The judgment is affirmed.
I concur: Miller J.
RAMIREZ, P.J., Dissenting
I respectfully disagree with the conclusion of the majority that there is insufficient evidence in the record to support the charge.
First, as to the knowledge of Ms. Chou (the homeowner) about the condition of the gates, Detective Hopewell testified that when she arrived at the premises, she spoke to no one, but instead read the reports of other detectives. She stated that in her affidavit in support of the arrest warrant (presumably for defendant) she would testify that other detectives told her that the owners knew the gates did not work. She also testified that hinges on two of the three “self-closing” gates were very rusted, painted over, and both had to be pushed in order to close. Thus, any reasonable inspection by the owner or anyone else (including the defendant) would have revealed the problem. Ms. Chou’s statements about her knowledge of the problems with the gates were “all over the place.” She told Detective Dotson that after she discovered the children playing inside the pool fence earlier in the evening and ordered them out of the area, “she closed the gate area.” Yet, when she testified at the preliminary hearing, the following colloquy occurred between her and defense counsel, about this incident,
“A [MS. CHOU]: We . . . demand[ed] that all the children leave the concrete area . . . around the swimming pool.
“Q [DEFENSE COUNSEL]: And the swimming pool gate was secured at that time, correct?
“A [MRS. CHOU]: We did tell the kids to secure the gate . . . .
“Q [DEFENSE COUNSEL]: And was the gate secured?
“A [MS. CHOU]: Before I was cooking noodles in the kitchen, I did see that the kids pulled the gate. I don’t know whether the latch was on or not. [¶] . . . [¶] I asked the kids to close the gate. I saw the kids close the gate, so I did not pay attention any further.”
When asked at the preliminary hearing if she knew that the gate and latch were in working order on the day of the victim’s drowning, she responded, “Yes, because every week, the pool man and the gardener show up at the property so that the gate was properly locked.” When asked if she had any reason to believe that the gate and the latch were not working properly on the day of the drowning, she said, “No, because the pool man after working will latch the gate properly.”
Why the owner responded to questions as though there was only one gate and one latch is a mystery, because there were three.
So, Ms. Chou’s statements went from her closing “the” gate herself, to her having the children close the gate, but not knowing whether it latched or not, to her relying on her pool man and gardener to report to her any problems with the gate and them properly closing it.
See footnote 1, ante.
Of course, none of this really matters, because it is the knowledge of the defendant that is at issue. However, to the extent that the majority suggests that Ms. Chou could not possibly have told the defendant about the dangerous condition of the gate, because she did not know herself, (maj. opn. at p. 8) it all depends on which of her various statements one believes.
Of more importance, of course, is the statement of the defendant, herself, to Detective Hopewell that she knew the gates did not work. It is absolutely clear that this statement was made during the interview of the defendant at the hospital. The majority’s speculation that the defendant “became aware of the problems with the gates after the drowning and before the Hopewell interview” (maj. opn. at p. 8, fn. 2) is completely unfounded. Presuming, as the majority does, that the homeowners were not aware of the problems with the gates, who would have informed the defendant about them between the time everyone rushed into the backyard and saw the victim’s body floating in the pool and the defendant was interviewed at the hospital? When would this information have been given to the defendant — at poolside, while she watched people try to save her daughter, or at the hospital when she was told that her daughter was dead? I find it hard to believe that someone would convey such information to a grieving, and, probably hysterical, mother in such circumstances. Far more logical is the inference that the defendant gained this knowledge, perhaps by seeing the gates herself (as Detective Hopewell did) or watching them not operate before the drowning, and that was what prompted her to make the comment to Ms. Chou about her concern for her daughter near the pool.
I acknowledge, as the majority points out (maj. opn. at p. 8, fn. 2) that the magistrate did not expressly rely on the defendant’s statement that she was aware of the defects in the gates in deciding to bind her over for trial on the charge. I also acknowledge that the prosecutor failed to mention it in his opposition to defendant’s 995 motion. However, that is the function of an appellate court — to review the record, carefully, and without the pressures attendant at trial — to determine if it supports the bind-over. No one, including the majority, can make this admission by the defendant “go away.” They cannot explain it away, even though they have attempted to do so. It is there, it is part of the record, and it supports the magistrate’s ruling.
I am not surprised that the trial court failed to mention it when granting defendant’s 995 motion. To do so would have appeared contradictory to its ruling.
I am puzzled by the majority’s statement that the defendant’s stated concern over the victim and the pool “would likely be dispelled after Chou ensured that the access gates to the pool area had been secured” and that “the evidence demonstrated that Chou had ensured that the gates were all secured after the children had initially made their way into the pool area.” (Maj. opn. at pp. 9-10 [italics added].) First, as I have already demonstrated, Chou’s various statements about securing the gates are conflicting, with one version being that she had the children close them and did not bother to see if they latched. Second, there was not one iota of evidence that, even if Chou secured the gates herself or had someone else secure them to her satisfaction, she communicated this information to defendant. Surely, if this had been the case, someone, at some point would have said so, but no one did. Therefore, I do not understand on what evidentiary basis the majority asserts that Chou “ensured” that the gates had been secured and somehow communicated this to defendant. Even if she had, the fact remained that there were children of ages not specified in the area near the pool. Any one of them could have opened a functioning gate, gone through it and the victim slipped into the pool area behind him or her but before the gate had a chance to close. This is the inherent danger in allowing a young child who does not swim around a gated pool whose gates can be opened by the other children present.
The majority finds comfort in the fact that all the other parents seemed at ease allowing their children near the pool. (Maj. opn. at p. 9.) However, we do not know their ages, their swimming abilities and the extent to which they were supervised by their parents or older siblings.
The majority also states that from the kitchen, dining room and family room “an adult could see out into the backyard” and this somehow relieved the defendant of the obligation to supervise or even check on her child. (Maj. opn. at p. 10.) While there was evidence that the pool area could be seen from the kitchen and the room where the video was being shown, and Ms. Chou testified that there were always one to two adults in the kitchen getting drinks and/or in the family room chatting, she never said that these people were supervising the children. In response to the question, “Who was responsible for watching and supervising the children during the . . . class?” she testified, “Because there were times there are several parents in that area [which she did not specify], there would consistently be a parent or adult over there [again, she did not specify where this was].” She went on to testify that each parent was responsible for supervising his or her own child/ren. She said there were parents in the family room chatting when the victim’s body was found. However, Cong Cong Zhang testified that there were no adults in the family room when she first went there around the time she arrived at 8:00 p.m. and later when she went there to summon her children. She also testified that it was sufficiently dark outside when she opened the sliding glass door to call her children that she could not see into the pool area.
The fact that the defendant allowed her three year old to wander the house and yards, after dark, unattended for over one hour, without once checking on her, further demonstrates her criminal negligence. Ms. Zhang testified that when she arrived at the home at 8:00 p.m., she was greeted at the front door by the victim and a child of the homeowners, whose age she did not specify. For the defendant to have allowed her three year old to be present at the opening of the front door in an unfamiliar neighborhood at night with little or no supervision, to possibly be confronted by someone who might take or harm her or for her to run out into the street, posed a “serious and well-founded risk” in itself.