Case Law Basis for Endangerment Public Safety through

Case Law Basis for Endangerment Public Safety through Accountability

1 DEC Case Law Basis for Endangerment Revised 1/15 Copyright © 2015 Drug Endangered Children Training & Advocacy Center All Rights Reserved

DRUG ENDANGERED CHILDREN (DEC) and GANG ENDANGERED MINORS (GEMS)1 I. THE PROBLEM: Inattention Often, children found in drug abusing homes are simply left with neighbors, unknown relatives, or uncharged inhabitants. By leaving children in these environments, it is rarely known if the child is going into another drug home, or with someone who knew of but ignored the conditions of the home, or if the neighbor or relative is a felon or sex offender. These overlooked children often have their medical well being ignored and the chance to test the child for drug or chemical contamination is lost. Limited field resources and a lack of coordinated planning with the District Attorney and Children’s Services, and focus solely on the drug crime, the crime of child endangerment, Penal Code section 273a, is often ignored. More and more, officers, prosecutors, social workers and health professionals are coming together to address this problem of children endangered by drug manufacturing, sales, use and lifestyle. By forming Drug Endangered Children Response Teams, by reorganizing and committing existing resources to make child endangerment a priority in their agency mandate, children are living better lives, and adults who endanger them are facing greater accountability. II. THE SOLUTION: Cooperation To address the problem, and help children break free of drug environments, Drug Endangered Children (DEC) Response Teams developed throughout the state. Consisting of a deputy district attorney, law enforcement, and a children services worker, the teams respond 24 hours a day, 7 days a week, when children are found in situations likely to result in harm to their health. The team approach brings together the necessarily involved agencies, but also includes participation from health care, medical, and fire and haz/mat, and code enforcement Agencies often at odds with each other work together with trust and reliance to ensure effective application of laws to hold accountable adults who endanger children for drug related reasons. III. NOT JUST METH:

1 Original materials were authored in part by Clare Keithley as a Butte County Deputy District Attorney. Advocacy or investigation techniques in the materials derives from the authorship prior to Clare Keithley’s appointment to the Butte County Superior Court in September 2008. Current editing by Judge Keithley is for content clarity and ease of reference. DEC and GEM Programs originated in Butte County through the cooperative efforts of the BNE based Narcotics Task Force, local law enforcement, Butte County Social Services and Butte County District Attorney Mike Ramsey, and the very great ideas, efforts and unwavering commitment of Sue Webber-‐Brown, Butte County District Attorney Investigator, Retired.



DEC Response Teams initially developed to rescue children in methamphetamine labs. Now, counties across the state apply PC 273a to other situations that are dangerous to a child’s health: drug sales; drug use; drug paraphernalia; possible chemical or drug contamination; indoor marijuana grows; hash and honey oil butane extraction labs; and even homes without drugs but they are infested with health hazards from overt filth. The common retort of ‘just a dirty house’ has long been upheld as sufficient basis for the crime of child endangerment. Moreover, enhancements now exist to protect children who are present at a methamphetamine lab or precursor crime. IV. CHILD ENDANGERMENT: PC 273a A. Penal Code 273a(a): Felony “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 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, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.” (Emphasis added.) Italics indicate the key elements which must be shown for felony child endangerment: Any person having care or custody of any child [need not be related to the child] willfully permits [more than inattention; criminal negligence] a situation [labs, grows, ongoing filth, weapons, sales] health is endangered [actual injury not required] likely to produce great bodily harm* [only a likelihood of significant injury] B. Penal Code 273a(b): Misdemeanor “Any person who, under circumstances or conditions other than those 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 may be endangered, is guilty of a misdemeanor.” Elements for Misdemeanor the same as Felony Except No need to show likelihood of great bodily harm All other elements are the same



V. FIRST STEP: Establish whether conduct is “Abuse” or “Endangerment” The charging section, PC 273a, will be the same for Abuse cases and Endangerment cases. The distinction in conduct is important though because Abuse does not require a relationship with the abused child. Endangerment does require a “care or custody” relationship with the child. Abuse or Endangerment cases can both be filed as either a Felony or a Misdemeanor. The distinction in the degree of crime does not come from the type of conduct (i.e. Abuse v. Endangerment.) Rather, it is the likelihood of great bodily harm that will determine whether the crime is charged as a Felony under PC 273a(a) or as a Misdemeanor under PC 273a(b). A. Abuse: Force Used on Child Causing Physical Pain If there is use of force on a child, of any degree, by any adult, then PC 273 applies. B. Endangerment: Requires Care or Custody Relationship Between Adult and Child If the conduct is endangerment, there must be a ‘care or custody’ relationship with the child. Endangerment can come from a wide variety of situations which are discussed in greater detail below. These are, in short, drug homes, drug labs, drug sales, access to weapons, and overt filth. 3rd Great Bodily Harm The degree of the crime, felony or misdemeanor, will be guided by whether the abuse or endangerment was likely to result in great bodily harm. Severity of the Physical Abuse Determines Whether It Is a Felony or a Misdemeanor Where force is “likely to result in great bodily harm” then a felony can apply. PC 273a(a). Where force is NOT likely to result in great bodily harm, then it is a misdemeanor PC 273a(b). Great bodily harm has the same legal definition as Great Bodily Injury under PC 12022.7. (GBI) This means a substantial or significant injury. So, the show for a felony on either an abuse or endangerment case is that the conduct against the child was likely to result in either a significant or substantial injury. Note: No actual injury need be present for PC 273a(a). Broad application of Penal Code section 273a(a), child endangerment, was confirmed by the California Supreme Court in People v Smith (1984) 35 Cal.3d 798, 806: “We recognize that a violation of its (273a(a) felony) terms can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect. Two threshold considerations, however, govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed "under circumstances or conditions likely to produce great bodily harm or death." (Citation.) Absent either of these elements, there can be no violation of the statute.”



But, there are limits. The Smith, the court also held that two requirements must be present for any 273a(a) felony child endangerment prosecution: (1) willful conduct, and (2) committed under situations likely to produce great bodily harm or death. It is the likelihood for great bodily harm that guides a felony filing. In most DEC cases, the PC 273a(a) felony charge comes from passive behavior with only a potential (likelihood) for harm. STATUTE OF LIMITATIONS PROBLEMS: Wobblers Although PC 273a(a) is a wobbler, be aware that amendment to a misdemeanor, as stated in PC 273a(b) [where a likelihood of great bodily injury is not required], can present statute of limitation problems. (See People v. Mincey (1992) 2 Cal.4 408, 452-‐454, amendment during trial to a misdemeanor barred conviction where act occurred over one year before the case was filed.) PC 273a(a) can be filed as a misdemeanor but it still requires a showing of a likelihood of great bodily injury, just like the felony in the same section. VI. MENTAL STATE ABUSE CASES Any Person Who Causes or Permits or Inflicts Unjustifiable Physical Pain Intent to Be Liable: General Criminal Intent General criminal intent is required for an act which is directly assaultive, and applies for either a felony or misdemeanor actual physical abuse case. (People v. Sargent (1999) 19 Cal.4th 1206, 1219-‐23, shaken baby.) But, what is General Criminal Intent?

“General criminal intent … requires no further mental state beyond willing commission of the act proscribed by law.” (Sargent at p. 1215.)

ENDANGERMENT Care or Custody of Child and Permits Situation Endangering Child’s Health Intent to Be Liable: Criminal Negligence Criminal Negligence applies to the “neglect” option of 273a, or any conduct that is not directly assaultive. But, what is Criminal Negligence”?

“Criminal negligence is " 'aggravated, culpable, gross, or reckless, that is, . . . 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 . . . .' " (Citation.) "Under the criminal negligence standard, knowledge of the risk is determined by an objective test: '[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.' " (Sargent at p. 1215.)



The Sargent court cites several cases in which criminal negligence was found to be the correct mental state to apply in cases of neglect or indirect abuse. (Sargent pp 1215-‐19.) VII. BASES FOR ENDANGERMENT Passive, neglectful, or permissive conduct are the areas in which most drug endangered children charges arise. These are the variety of indirect hazards to which children raised in drugs and gang environments are exposed by the disregard of caretakers to put a child’s safety first. CONTAMINATION The likelihood of contamination in a drug use, sales or manufacturing home is one of the most common bases for PC 273a(a) cases. Contamination can be not just from the drug itself, but from the chemicals used in manufacture, extraction or processing of the drug. Contamination can be through direct ingestion or skin absorption or through inhalation. Of course, methamphetamine started as the most apparent hazard. But, the manufacture of hash oil, the processing of marijuana, or the conversion of cocaine, are other manufacturing crimes which lend themselves to similar dangers to children. Chemical Contamination Dangerous substances such as iodine, red phosphorus, sodium hydroxide, acetone, muriatic acid, hydrogen chloride acid or gas pose a definite hazard to children. On commercial containers, warnings about contamination are generally prominent. Contamination can occur in a number of ways: through the skin, soiled clothing, household items used with the substances, smoke, vapor, and direct ingestion. Controlled Substance Contamination Children can be in danger if there are drugs accessible to the child and the child has a likelihood of touching, inhaling or ingesting the drug. The degree of likely harm will rest in large part on the age of the child, the type of drug, and the amount at issue. By way of example, a new born baby is less endangered from drug contamination where the baby has no mobility to get to the large amounts of packaged drugs. However, an active toddler who can reach a drug pipe that holds only drug residue might be in greater danger due to the higher likelihood that a toddler will put the pipe in their mouth. With any Contamination theory as the basis for the 273a(a) charge, the District Attorney will have to show not only the likelihood of harm if the contamination occurs, but also the likelihood that the contamination will occur at all.



Filth Contamination Contamination from hazards from the home’s condition also exposes a child to health hazards: animal and human feces; used needles; used condoms; backed up toilets and sinks; rotting food. If this is the theory of endangerment, a pediatrician will need to review the investigative reports and provide an opinion on the likelihood of great bodily harm. You will need to show not only the likelihood of the harm, but also the likelihood of the contamination. The more active the child is throughout the contaminated area, the greater the likelihood of contamination. Collection of soiled items, urine samples, and reporting of children’s toys in the dangerous area, are all helpful in showing the likelihood of contamination. HAZARDOUS LIFESTYLES Homes without meth labs or chemicals still result in drug endangered children if there are hazards in the home which stem from the use or sale of drugs. Users often live a lifestyle “incompatible with a proper regard for human life.” This usually leaves a child exposed to contamination, but exposed also to less quantifiable hazards: drug trafficking; PC 290 registrants; pornography; weapons; raids by law enforcement which might result in gun fire. Hazardous Lifestyle: Drug Dealing at Home Adults who choose to sell drugs, or maintain supplies their drug supplies, in the home where children live are “permitting a situation to take place” that is “likely to result in a significant injury to a child.” Where that adult has a care taking role with the child, that adult is liable for a felony violation of PC 273a(a). Your expert to testify as to the likelihood of harm, where the endangerment comes from living in a drug dealing home, is a narcotic officer. A narcotic officer can testify as to: (1) dangers of drug dealing (2) paranoia of drug dealers, suppliers and buyers (3) likelihood of firearms (4) likelihood of home invasion robberies or drug deal rip offs resulting in violence [it is helpful to keep local statistics as to actual home invasions and bad deals resulting in violence and injury or death.] A narcotic officer with field experience can describe how officers protect themselves in executing narcotic search warrants. The point to the court and jury is that drug dealing is a dangerous business requiring even trained officers to take protective measures. And, that when a person makes the choice to bring a danger into the home where children live, and expose those children to the likely harms listed above, then those adults are liable for that endangerment. And remember, in California, the law only requires a likelihood of harm. If the defendant wants to be a drug dealer, that’s fine. But, penalties attach for that choice. If the



defendant wants to endanger children while dealing drugs, that’s fine. Penalties attach for that too. Hazardous Lifestyle: Gang Endangered Minors-‐ GEMS-‐ PC 273a Just like the defendants who choose to conduct their dangerous drug dealing lifestyle in the homes of children, adults who bring home a known gang lifestyle can also be charged with child endangerment. Where gang members have been engaged in recent violence, and hold meetings or have gang activity regularly at the home of children, a case can be made for a PC 273a(a) prosecution. The Butte County District Attorney’s Office holds adults accountable for their choice of a gang lifestyle as a basis for endangerment when the adult’s gang lifestyle places the children in the middle of gang activity. Gang Endangered Minors are children who are raised in homes where the parents consistently maintain, conduct and invite a gang lifestyle into the home with their children. GEMS are children who are children in a vehicle with a gang member who engages another gang member in their child’s presence; who invites retaliation while their child is present. Just as with a DEC case, an expert would need to testify as to the likelihood of harm in light of the specifics of each case. The expert opinion in a GEM case would come from a gang officer. A gang officer can opine about how acts of retaliation include drive by shootings at homes where children live. And, such acts of violence can come from members of either the defendant’s own gang, or rival gangs. Where children are living in homes that regularly host gang meetings, or violence has occurred, and the address is well documented as an ongoing gang house, a felony prosecution of child endangerment is viable and can expose gang members to 6 years in prison. Predatory Abuse Children are often also the victims of sexual or physical abuse from drug using adults. They often witness acts of domestic violence, violence on siblings, and others. Interviews with children in a controlled setting, once safely detained and away from the scene, many times results in disclosure of these crimes which were not readily apparent at the scene. It is important for agents, social workers, and prosecutors to watch closely the demeanor of children as they discuss people who have been in the home. Hesitation to answer questions, requests to talk privately, or indifference to pornography, can be indicators of abuse. Wait to discuss the issue further in a child friendly setting. (CART interview-‐ see Evidence Collection.) If actual abuse, you still have 273a. Past abuse can endanger the child because we know from domestic violence that abuse in the home escalates over time and that children are often caught in the cross fire between victim and abuser. This is a good opportunity to bring a domestic violence expert to talk about the potential for future harm.



FIRE OR EXPLOSION Even without a heat source, or cooking lab, fire is a hazard which endangers children 24 hours a day. Fumes linger undetected and seek any open flame or spark. Plugging in an appliance near lab fumes presents a danger of fire just as lethal as during the cook itself. Fire Meth Lab Almost without saying, children in a meth lab have their health endangered by someone taking care of them permitting the situation to take place. The endangerment from fire becomes even worse by the amount and type of debris collected in meth cook homes: flammable liquids carelessly discarded, avenues of escape cut off by debris, unstable heat sources and electrical sparks and inattentive adults in a chaotic home. Definitely call on your Code Enforcement, Lab Experts, Chemists and Fire Personnel to opine about the likelihood of fire, explosion and death. Fire Marijuana Endangerment to a child can come from fires in other drug related settings. Indoor marijuana grows are prime candidates for deadly fires. Children in these areas are unable to anticipate hot grow lights, over extended electrical sockets, wooden ballasts and combustible material igniting in the night. Those who choose to grow marijuana at the expense of the safety of their children can be considered for the charge of child endangerment. It is important to involve the Fire Department and Code Enforcement at the scene and seek their opinion as to the likelihood of fire. MARIJUANA Children are endangered by marijuana in different ways depending on the age of the child, whether and how the marijuana is cultivated, possessed for sale or accessible to the child. Marijuana Proposition 215 Is Not a Defense to Child Endangerment Legitimate medicinal use and the corresponding defense under Health and Safety Code section 11362.5 (Proposition 215) does not give rise to the right to endanger a child. Child endangerment is not a crime to which Prop 215 applies. If there is medicinal use, the conditions surrounding use or possession, or conditions in the home, might warrant child endangerment especially where the house has reached a dilapidated condition, the food is spoiled, the air quality poor, children need medical attention, the home is vulnerable to home invasions, weapons are accessible to the children or other such dangers exist. The crimes to which Prop 215 defense apply are listed in the statute. Marijuana Nature of the Grow Marijuana grows often present dangers in the nature of the grow itself. Convoluted wiring, poorly constructed rooms, unstable trays, lack of ventilation, increased fire dangers, exposed chemicals and unprotected access to pools of water are a few examples of how marijuana grows, even for compassionate use, can devolve into the crime of child endangerment. It is



important to see whether the conditions of the grow poses a danger to children in the home. A doctor’s recommendation that the adult in the home use marijuana does not give the adult license to endanger a child. Marijuana Marijuana Sales In most counties, marijuana grows and processed marijuana are highly sought after items by criminals. Many who grow marijuana, even for medicinal use, protect their grow with firearms. Home invasion robberies often occur where the property sought is medicinal marijuana or marijuana possessed for sale. Selling marijuana out of a home, with children present, can be another basis for child endangerment. If a person decides to sell marijuana, it does not necessarily have to be done out of the home where the child lives. The expert speaking to that danger is a narcotic’s agent who can attest to the level of violence associated with marijuana grows and marijuana sales and the risk posed to anyone that firearm activity will take place. In a marijuana for sale case, consider whether the sellers put children at risk. Marijuana BHO: Butane Honey Oil and HS 11379.6(a) When defendants are using butane or other chemicals to extract THC from marijuana, consider charging HS 11379.6(a) rather than HS 11358. The beauty in this is that HS 11379.6(a) is not a crime listed in HS 11362.5. It makes sense that the Honey Oil process is beyond the protection of the medicinal use defense because the process is so volatile and endangers others. Because the process of extracting THC creates dangers of fire and explosion, similar to those that exist for meth labs, Honey Oil labs create the type of dangerous environment from which a charge of PC 273a(a) would flow if children were present. BHO CASE LAW: People v. Bergen (2008) 166 Cal.App.4th 161 The application of US 11379.6(a) to chemically based THC extraction was upheld recently in People v. Bergen (2008) 166 Cal.App.4th 161. In Bergen, the defendant used a house as a grow house with every room dedicated to marijuana cultivation with a total plant count of 665 with a range of size in height from 6 inches to 5 feet. Deputies found butane canisters, glass tubes and resulting product in the garage. After the Preliminary Hearing and losing a motion to dismiss, the defendant pled to the manufacturing charge and filed an appeal. On appeal, the defendant complained that the specific charge of HS 11358 should control because the chemical structure of the THC did not change. The California Court of Appeal denied the defendant’s claims on appeal and noted in Bergen:

“Section 11379.6(a) makes it unlawful to engage in the chemical extraction of a substance as part of the process of manufacturing a controlled substance. [Citation omitted.] It is an additional statute that prohibits “processing” of “marijuana.” Section 11379.6(a) provides, … “Except as otherwise provided by law, every person who manufactures, …, …, produces, derives, processes,



or prepares, either directly or indirectly by chemical extraction …, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment in the state prison for three, five, or seven years …” (Italics in the Bergen opinion. Bergen at pp. Footnotes omitted.) “Marijuana” is listed as a schedule I hallucinogenic controlled substance in section 11054 and is thus included within the scope of section 11379.6(a). (….) “Tetrahydrocannabinols,” the psychoactive ingredient in marijuana, are also listed as schedule I hallucinogenic controlled substances in section 11054. (….) …” (Bergen at p. 168.) “Unlike the general prohibitions in section 11358, the focus of section 11379.6(a) is on the particular processes employed to produce a controlled substance—by chemical extraction or chemical synthesis. [Footnote omitted.] Stated differently, section 11379.6(a) does not simply make unlawful the processing of concentrated cannabis as does section 11358. It prohibits and punishes the specific means used to process marijuana plant material into concentrated cannabis. In this sense section 11379.6(a) is a more narrowly drawn statute, covering only specific methods of processing “marijuana”—which by statutory definition includes concentrated cannabis (§ 11018). …” (Bergen at p. 169.)

… …

“Bergen's acts fit squarely within section 11379.6(a)'s proscriptions. Bergen used the solvent butane to extract marijuana resin in producing concentrated cannabis. Butane is a flammable solvent as evidenced by its use in cigarette lighters and the like. He manufactured and chemically processed the concentrated cannabis in a lab located in a house situated in a residential community. Bergen's activities thus posed a risk of fire to the residence and to the public at large. Bergen's prohibited activities satisfy the criteria for a conviction of section 11379.6(a) and subject him to its greater penalty provisions. …” (Bergen pp 172-‐73.)

The Bergen case did not involve children or charges of child endangerment. However, it is becoming more frequently the case that children are present in homes with active BHO labs. As such, the reasoning as detailed by the Court of Appeal in Bergen is relevant on the issue of “likelihood of great bodily harm” that “Bergen's activities thus posed a risk of fire to the residence and to the public at large.” (Bergen at p. 173.) As such, PC 273a(a) would be a proper consideration in a BHO as much as it would in a methamphetamine lab. Importantly, the “kid enhancement” under HS 11379.7 would not apply to a BHO case because marijuana or THC are not controlled substances included in the enhanced penalty. Colleagues Who Can Help You: The people listed below have actively investigated and litigated BHO cases and are available for contact: Katherine J. Houston, Mendocino County Deputy District Attorney



Deputy Bill MacDonald, Napa County Sheriff’s Office Detective Sergeant Chris Bertoli, Sonoma County Sheriff’s Office Detective Andy Cash, Sonoma County Sheriff’s Office 2796 Ventura Ave Santa Rose CA 95403 (707) 565-‐5448 acash@sonoma-‐county.org A brief comparison of the two charging sections highlights how the two sections are different. HS 11379.6(a): Involves use of chemicals HS 11358: Manual manipulation AS TO ANY PERSON WHO AS TO EVERY PERSON WHO by means of chemical extraction directly or indirectly or by means of chemical synthesis Does any one of these Does any one of these manufactures plants compounds dries converts processes produces derives processes prepares Resulting in Pertaining to Any controlled substance in HS 11054-‐11058 Any marijuana marijuana is a controlled substance Any part of marijuana THC is a controlled substance

Honey Oil Hash / Kief Use of butane or other chemicals to extract Concentrated marijuana acquired THC from the marijuana plant by pouring through the manual manipulation of the chemical over the plant, letting the the plant to either compress the resin

glands or extract the oils. chemical evaporate and collecting the liquid Kief is the result of rubbing the THC. This is producing a controlled substance trichomes against a very fine screen through a chemical extraction. Very similar to The result is a product for use or pulling pseudoephedrine out of the pills or to be pressed into a cake or other preparing meth with a solvent. form. The preparation for pressed or

powdered hash or kief does not involve chemicals.



VIII. DEFINITION OF TERMS: The Courts Weigh In Since 1965, courts have upheld the propriety of applying PC 273a(a) to deplorable conditions in the home. Over the years, courts are faced with application of this code section to unimaginably dangerous situations. Courts have risen to the occasion by upholding application of the statue to new situations that fall within the spirit and letter of the law: protect children from endangerment by holding accountable adults for the dangerous situations they allow to take place. Courts have recognized that child endangerment can occur in a wide variety of situations. And, the crime can be committed with passive conduct and that some factors are such common sense that no expert is needed. CASE LAW NEGLECT: PASSIVE OR PERMISSIVE CONDUCT People v. Beaugez (1965) 232 Cal.App.2d 650

First felony prosecution under section 273a to reach an appellate court. In this case, a 5 month-‐old child was found with fractures, bruises and contusions, not inflicted by this defendant but the defendants permitted abuse to occur.

\ NEGLECT: CONDITIONS IN THE HOME: Dirty Home Case People v. Harris (1966) 239 Cal.App.2d 393 In Harris, stemming from a neighbor’s report, police entered defendant’s home and found: “[E]xtremely filthy residence littered with dirt and debris and dirty clothes. Old food was mashed on the floor. There was a sickening odor of defecation everywhere. Cockroaches of all sizes were in every room of the house, crawling on the walls and ceilings and in cupboards.”

“In one of the bedrooms [the officer] saw a bed without sheets and a mattress completely black with dirt and filth. In the bathroom he observed a "potty stool" filled with defecation and flies, and defecation on the floor. On the bedroom floor there was dried defecation which had been stepped in. One bed had sheets on it, but they were filthy and appeared yellow from urine.”

“A child who was in bed had what appeared to be dried defecation on his legs. The sheet had dried onto his legs and had to be removed forcibly. The child's buttocks and thighs were raw and "appeared to be like a beefsteak." (Harris at p. 395.)

“[A neighbor] saw a little girl playing with a little boy's privates. The boy was screaming with pain and no adult seemed to be about, so the witness called the police.” (Harris at p. 395.) ... … “This record discloses conditions of filth and wanton neglect which even the most ignorant and insensitive parent should recognize as hazardous to children.” (Harris at p. 398.) In re Maria R. (1976) 64 Cal.App.3d 731 discusses Harris and Beaugez, in a manner that reinforced the notion that courts understand that (1) not all poor parenting decisions are child



endangerment but (2) the “just a dirty house” claim will not alone turn back a 273a charge where facts are similar to these: ·∙Extremely filthy residence littered with dirt and debris and dirty clothes. ·∙Old food mashed on the floor. ·∙Sickening odor of defecation everywhere. ·∙Cockroaches in every room of the house, on the walls, ceilings and cupboards. ·∙Bed without sheets and a mattress completely black with dirt and filth. ·∙Bathroom 'potty stool' filled with defecation and flies. ·∙Defecation on the bedroom floor which had been stepped in. ·∙One bed sheet was filthy and appeared yellow from urine. ·∙A child in bed had what appeared to be dried defecation on his legs. DANGEROUS CONDITIONS People v. Odom (1991) 226 Cal.App.3d 1028 In Odom, there was HS 11383 evidence along with unsanitary conditions, exposed dangers, and weapons. The court succinctly relied on child endangerment principles from other cases to find child endangerment in the Odom context. People v. Little (2004) 115 Cal. App. 4th 766 In a bedroom, officers found glass pipes used for drugs; electronic scale with white powdery substance; packaging material; and a backpack with 70 grams of methamphetamine. An officer testified he was overcome by smell of animal feces and rotten food. Another officer testified to dirt, insects, cockroaches, animals running around and garbage piled in almost every room. An officer found defendant’s infant daughter in another bedroom, lying unsecured in the middle of a bed, which was around three feet high. The officer noticed the bed lacked railing or restraints to prevent the child from crawling or rolling off the edge. Concerned the child might fall and injure herself, the officer called for help and removed the child. On appeal, defendant claimed there was no basis for finding his daughter's person or health was endangered. Defendant complained there was no evidence that: (1) she was capable of rolling or crawling and therefore could have fallen off the bed; (2) no evidence the contraband or dangerous objects were within her reach; and (3) no evidence she had been physically neglected, uncared for, or undernourished. The Little court stated plainly, “We are not persuaded.” (At p. 771.) The Little court went on to detail how reasonable inferences support the conviction:

“Evidence of the child's age range reasonably supports an inference that she was old enough to be able to crawl or at least roll over. This inference, her unsecured location on a bed without



restraints or railings, and the height of the bed reasonably support a finding that the child was left in a situation where she may have been injured by falling off the bed. “Indeed, [the officer] testified that he feared the child might roll off the bed. Moreover, evidence concerning conditions inside the residence-‐-‐the stench from rotten food and feces, piles of garbage, loose animals, and widespread vermin-‐-‐reasonably supports a finding that the residence in general and master bedroom in particular were so unsanitary as to pose a potential danger to health. (Cf. People v. Odom (1991) 226 Cal. App. 3d 1028, 1033 ; People v. Harris (1966) 239 Cal. App. 2d 393, 395.)” (Bold added.)

“Thus, taken together, evidence of the child's circumstances on the bed and the deplorable condition of her surroundings constitute ample evidence that defendant willfully engaged in conduct that placed his child's person and health in danger. That defendant possessed and used drugs in the residence and that others were found on the premises in possession of drugs and under the influence of drugs only strengthens the finding that the circumstances in the residence posed a threat to the child's health and safety.” (At pp 771-‐772. Bold emphasis added.)

DANGEROUS CONDITIONS: METH LAB: Inherently Dangerous Felony

People v. James (1998) 62 Cal.App.4th 244 In James, the defendant, a well known and successful meth cook, killed three children in her trailer while preparing for manufacturing. Although she escaped out a bathroom window, children perished in the fire which quickly consumed the trailer. Riverside Prosecutor John Davis convicted the defendant of second degree murder, proving that manufacturing methamphetamine is an inherently dangerous felony.

“The dangers of manufacturing methamphetamine are closely analogous to the dangers of possessing a destructive device, ... Both felonies involve a dangerous instrumentality; its maker often loses control over it; it may wreak enormous havoc on persons and property; the victims are often unintended sufferers; .. In some ways, manufacturing methamphetamine is more dangerous ... [O]ne cannot commit ... manufacturing methamphetamine without possessing at least some hazardous substances. ... [M]anufacturing methamphetamine, ‘by its very nature ... cannot be committed without creating a substantial risk that someone will be killed ...’ [Citation.]” (James pp 270-‐271. Emphasis added.)

CARE OR CUSTODY People v. Perez (2008) 164 Cal.App.4th 1462 In Perez, the defendant was present when a search warrant was served in a house defendant shared with his sister and where the 4 year old daughter of his niece occasionally stayed. Heroin and loaded syringes were found throughout the house. The defendant’s sister slept during the day and the defendant assisted in the upkeep of the home. Defendant denied taking care of the



4 year old. The defendant was convicted by jury of drug charges along with a misdemeanor violation of Penal Code section 273a(b). Defendant Perez complained, unsuccessfully, on appeal that he was not a “caretaker” under PC 273a. The defendant also complained, unsuccessfully, about the trial court’s handling of the child endangerment jury instruction. The Perez xourt clarified that care or custody in PC 273a: does not require an affirmative agreement, and does not require any particular length of time, and does not require any overt agreement, and The Perez court found that caretaker status can be established circumstantially from lifestyle conduct. Citing prior case law, the Perez court gives great guidance on the issue of Caretaker:

“The language of the statute clearly covers not only parents, guardians, and babysitters, but also individuals who do not necessarily have as substantial a relationship to a child as a parent, guardian, and/or babysitter, but who nevertheless have been entrusted with the care of a child, even for a relatively short period of time.” (Perez at p. 1469.) … …

“Whether one is “caring” for a child is determined not by agreement, but instead, as a matter of fact based upon the surrounding circumstances.” (Perez at p. 1471.) … …

“That a person did undertake caregiving responsibilities may be shown by evidence of that person's

conduct and the circumstances of the interaction between the defendant and the child; it need not be established by an affirmative expression of a willingness to do so.” (At p. 1476. Bold added for emphasis.)

The Perez court pointed to facts at trial on which the jury could reasonably have found a caretaker status: the child called the defendant “Daddy Joe,” the child ate meals with the defendant, the child spent “a little bit” of time with the defendant, the defendant was at home every time the child was at the defendant’s house the defendant babysat the child one day there was an inference there were times defendant was the only adult in the house who was not

asleep while the child was present in the home, and thereby left in his care People v. Toney (1999) 76 Cal.App.4th 618 In Toney, the court held a common sense standard for “care or custody” of a drug endangered child. The child in Toney visited the defendant’s home on weekends, and had his own room. The defendant’s methamphetamine manufacturing chemicals were stored throughout the



house. Since it was not the defendant’s biological child, he argued he did not have “care or custody”. The Toney court recognized the term “care or custody” in PC 273a cases does not imply a familial relationship. Rather, it requires a willingness to assume the duties correspondent to the role of care giver. CRIMINAL NEGLIGENCE IN ENDANGERMENT CASES As applied to indirect abuse in PC 273a cases, the defendant's conduct must amount to a reckless, gross, or culpable departure from the ordinary standard of due care; it must reach 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. (People v. Sargent (1999) 19 Cal.4th 1206; People v Deskin (1992) 10 Cal.App.4th 1397; People v. Rippberger (1991) 231 Cal.App.3d 1667, 1673, 1682; People v. Pointer (1984) 151 Cal.App.3d 1128.) Mere inattention is not sufficient. (People v. Peabody (1975) 46 Cal.App.3d 43. See also People v. Toney (1999) 76 Cal.App.4th 618.) People v. Peabody (1975) 46 Cal. App. 3d 43: Allowing Child to Be Injured By Another

Defendant's 4 month old infant suffered non-‐accidental fractures. There was no evidence that the defendant, as opposed to baby's father, inflicted the injuries. Conviction was based on the portion of PC 273 that proscribes a person from wilfully permitting a child to be placed in a health endangering situation under circumstances likely to produce great bodily harm or death. The Peabody court held that under these circumstances, section 273a, requires proof of criminal negligence.

Criminal Negligence Applies to Permissive Conduct:

People v. Kinkead (2000) 80 CA4 1113: defendant fell asleep next to his 3 yo daughter, after ingesting meth, marijuana, and alcohol and being up for days, and asphyxiated her People v. Toney (1999) 76 CA4 618: child living in home with pail of caustic chemical was on kitchen floor with other hazards; People v. Hansen (1997) 59 CA4 473: 34 yo man encouraged 14 yo to play fatal roulette game People v. Lee (1991) 234 CA3 1214 mom convicted of 2nd degree murder and felony child endangerment for death of emaciated and dehydrated infant People v. Rippberger (1991) 231 CA3 1667: failure to seek medical treatment for child People v. Odom (1991) 226 CA3 1028 children living in squalor; surrounded by highly dangerous drug lab and weapons People v. Pointer (1984) 151 CA3 1128: failure to provide proper nutrition and medical care Cline v. Superior Court (1982) 135 CA3 943: dad endangered toddler by throwing him in a car driven by another and then encouraging, or knowingly permitting, dangerous ride GREAT BODILY HARM-‐ felony conduct must have a likelihood of great bodily harm



According to People v. Kimbrel (1981) 120 Cal.App.3d 869, 872, the term ‘great bodily injury’ is one commonly understandable to jurors. The term is also defined in PC 12022.7(e) as “a significant or substantial physical injury.” HS 11379.7 relies on PC 12022.7. UNJUSTIFIABLE-‐ infliction of physical pain or mental suffering must be unjustifiable The term means conduct that is not legally defensible, or without a legal excuse such as self-‐defense or defense of others. (People v. Curtiss (1931) 116 Cal.App. Supp. 771.) WILLFULLY-‐ the conduct or lack thereof must be done willfully For Penal Code § 273a, willfully ...means ‘with knowledge of the consequences’ or ‘purposefully.’ In short, the conduct was not an accident. People v. Harris (1966) 239 Cal. App. 2d 393-‐ Expert Not Always Needed The Harris court stated, “We cannot agree that expert testimony was necessary. … The standard imposed by the statute is for the guidance of laymen. The court could and did act upon the same common knowledge which was imputed to the defendant. ...” (Harris at p. 398.) IX. APPLICABLE JURY INSTRUCTIONS: CALCRIM

CALCRIM are the standard set of instructions that the judge reads to the jury. Note: the elements or definitions listed in a jury instruction are often different than what is in the Code. CALCRIMS also provide cases that tell the judge, and attorneys, how to apply the instructions.

JURY INSTRUCTION TITLE CALCRIM CODE SECTIONS

Testimony of Child 10 Years or Younger 330

Expert Testimony 332 EC 801-‐805; 720, 721

Hypothetical By Experts 332

Resolution of Conflicting Experts 332

Criminal Negligence 253, 582

General Criminal Intent 250

Willfully 820

Great Bodily Harm 3160 PC 12022.7

Felony Child Endangerment 821, 822, 823 PC 273a

Manufacturing Controlled Substance 2330, 541a HS 11379.6

Possession w/ Intent To Manufacture Meth 2335, 2336 HS 11383



Contributing to Delinquency of Minor 2980 PC 272

X. SENTENCING CONSIDERATIONS:

Child Endangerment: PC 273a(c)

Penal Code 273a has conditions for sentencing built right into the code at subsection (c). These are mandatory and the court must make a record if they are not going to be imposed.

PC 273a(c): If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation: (1) A mandatory minimum period of probation of 48 months. [even for misdos!]

(2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-‐away conditions. (3) Successful completion of no less than one year of a child abuser's treatment counseling program approved by the probation department. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports. (4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer. (5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver. Financial Obligations Child Endangerment convictions carry a substantial financial obligation, even as misdemeanors. PC section 294 provides in relevant part: “(a) Upon conviction of any person for a violation of Section 273a, …, the court may, in addition to any other penalty or restitution fine imposed, order the defendant to pay a restitution fine based on the defendant's ability to pay not to exceed … ($5,000), upon a felony conviction, or … ($1,000), upon a misdemeanor conviction, to be deposited in the Restitution Fund to be transferred to the county children's trust fund for the purposes of child abuse prevention.”

HS 11379.6(b) Factor in Aggravation “Where a child under the age of 16 “resided” in a structure in which HS 11379.6(a) “involving methamphetamine” occurred, the court shall consider that fact as a factor in aggravation. So, keep in



mind that if there is a child present, but no care or custody relationship so PC 273a is not filed, the fact of the child’s presence can still affect the case as to whether an aggravated term is appropriate.”

This applies only to methamphetamine labs, and if an enhancement under HS 11379.7(a) is not being sought.

And, of course, the same fact cannot be used twice in sentencing. So, if the kid enhancement (HS 11379.7) is admitted or found true, and the defendant is going to be sentenced on the enhancement, then the presence of the child in the meth lab (11379.6) cannot be used as an aggravating factor.

XI. ALTERNATIVE CHARGING SECTIONS

HS 11379.7: “Kid Enhancement” for Meth Labs and Precursor Cases

This enhancement provides an additional 2 or 5 years in prison when certain violations occur in a “structure” where a child under 16 years was present.

HS § 11379.7 provides as follows: “(a)..., [A]ny person convicted of a violation of .. Section 11379.6(a) or Section 11383, or of an attempt ..., as those sections relate to methamphetamine or phencyclidine, when the commission or attempted commission of the crime occurs in a structure where any child under 16 years of age is present, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of two years in the state prison.” “(b) [A]ny person convicted of a violation of .. Section 11379.6(a) or Section 11383, or of an attempt ..., as those sections relate to methamphetamine or phencyclidine, where the commission of the crime causes any child under 16 years of age to suffer great bodily injury, shall, in addition and consecutive to the punishment prescribed for the felony of which he or she has been convicted, be punished by an additional term of five years in the state prison.” (c) As used in this section, "structure" means any: ·house, ·apartment building, ·shop, ·warehouse, ·barn, ·building, ·vessel, ·railroad car, ·cargo container, ·motor vehicle, ·house car, ·trailer, ·trailer coach, ·camper, ·mine, ·floating home, ·or other enclosed structure capable of holding a child and manufacturing equipment. (d) As used in this section, "great bodily injury" has the same meaning as defined in Section 12022.7 of the Penal Code.

HS 11379.7 ENHANCEMENT: SUBSTANCE MATTERS

The enhancement applies only to the Controlled Substances listed in HS 11379.7. And, only if there is a conviction for HS 11379.6. As such, a “kid enhancement” would NOT apply to the manufacture of other controlled substances in structures where children are found: i.e., NOT BHO labs, NOT cocaine processing.



DIFFERENCES: Between Child Endangerment and Lab/Kid Enhancement

PC 273a: HS 11379.7(a)(b)

Any endangering conduct HS 11379.6; 11383-‐meth; phencyclidine No age limitation Limited to children under 16 years of age No limitation as to type of conduct Child must be in the structure 11379.7(a) No causation required Conduct caused g.b.i. 11379.7(b) Sentence range: 2, 4, 6 Sentence range 2 or 5 years consecutive Subject to 17(b)(5) motion with 3,5,7 or 2,4,6, felony sentence Runs 1/3 the middle term: 1y 4mos Broader application Factually limited Less time if subordinate More time to a lab charge Restricted to type of lab. MISDEMEANOR ALTERNATIVE CHARGES

PC 273g: Immoral Practices or Habitual Drunkenness in Presence of Children

“Any person who in the presence of any child indulges in any degrading, lewd, immoral or vicious habits or practices, or who is habitually drunk in the presence of any child in his care, custody or control, is guilty of a misdemeanor.”

PC 272: Contributing to Delinquency or Dependency of a Minor Just as with 273a, which is often referenced as only a child abuse statute when it is in fact a child endangerment statute as well, 272 has a scope that is broader than commonly stated.. Penal Code section 272 prohibits adults from creating situations which tend to expose children to the laws governing delinquency or dependency. This fits perfectly with DEC because when law enforcement comes across a child that needs to be detained under the Welfare and Institutions Code section 300, the dependency element has just been satisfied for the misdemeanor crime of PC 272. Do not forget that Penal Code section 272 applies to adults who cause children to become dependent. The code section is often only called ‘contributing to the delinquency’ of a minor. But, as seen below, the code in fact protects children who are forced to become dependents. The Code Itself: Edited with Explanations in Brackets

§ 272(a) (1)



Every person [no relationship required] who commits any act or omits the performance of any duty [permissive, duty required], which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300 [dependency], 601 [truancy], 602 [delinquency] of the Welfare and Institutions Code, or ../../../research/buttonTFLink%3f_m=3bba269944ad2e179a055a077496ff73&_xfercite=%3ccite cc=%22USA%22%3e%3c!%5bCDATA%5bCal Pen Code %25a7 272%5d%5d%3e%3c/cite%3e&_butType=4&_butStat=0&_butNum=3&_butInline=1&_butinfo=CA WEL INST 300&_fmtstr=FULL&docnumwhich act or omission contributes thereto,

or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 18 years or any ward or dependent child of the juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause that person to become or to remain a person within the provisions of Section 300 [dependency], 601 [truancy], 602 [delinquency] of the Welfare and Institutions Code../../../research/buttonTFLink%3f_m=3bba269944ad2e179a055a077496ff73&_xfercite=%3ccite cc=%22USA%22%3e%3c!%5bCDATA%5bCal Pen Code %25a7 272%5d%5d%3e%3c/cite%3e&_butType=4&_butStat=0&_butNum=4&_butInline=1&_butinfo=CA WEL INST 300&_fmtstr=FULL&docnum is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years.

(2) For purposes of this subdivision, a parent or legal guardian to any person under the age of 18 years shall have the duty to exercise reasonable care, supervision, protection, and control over their minor child. [Remainder of Code omitted.]../../../research/buttonTFLink%3f_m=3bba269944ad2e179a055a077496ff73&_xfercite=%3ccite cc=%22USA%22%3e%3c!%5bCDATA%5bCal Pen Code %25a7 272%5d%5d%3e%3c/cite%3e&_butType=4&_butStat=0&_butNum=5&_butInline=1&_butinfo=CA BUS PROF 17538&_fmtstr=FULL&docn../../../research/buttonTFLink%3f_m=3bba269944ad2e179a055a077496ff73&_xfercite=%3ccite cc=%22USA%22%3e%3c!%5bCDATA%5bCal Pen Code %25a7 272%5d%5d%3e%3c/cite%3e&_butType=4&_butStat=0&_butNum=6&_butInline=1&_butinfo=CA WEL INST 6600&_fmtstr=FULL&docnu XII. EVIDENCE COLLECTION: When prosecuting a drug related PC 273a, the question becomes what is the minimal amount of conduct which provides for a felony filing. The answer, however, requires additional concerted efforts in evidence collection. Listed below are suggestions of evidence collection to assist in the evaluation of whether to prosecute as a felony or misdemeanor. Additionally, the more evidence collected, the more help it will be to the experts.



Photographs: The outside of the residence, the yard, every room in the house and the children. Also include any dangerous conditions including dirt and debris; (un)available food or (un)sanitary conditions. Please take note, and photographs, of any ventilation or lack thereof. Condition of the children: Note the appearance and demeanor of the children. Take photos of any injury, their clothing, and where they were found. Recorded statements of the children: When did they last eat, how often do they eat, where do they sleep, are they left alone, where do they play, with what do they play, where are their clothes kept, what do the adults do in the house, any bad odors, do they ever help, know of any guns, touched any guns or drugs, have they ever felt sick, do they go to school, have they been to a doctor or dentist, have they ever been hurt, and how. Interviews with the neighbors: Do they see the kids unattended, any bad odors, kids ever request their assistance. Measurements: How tall are the kids relative to the dangers. If the drugs are in a dresser, how tall is the child. Use a measuring tape; photograph the arm’s reach of each child. Safety Attempts: Any items that are secured. Locks on doors where the drugs or chemicals are kept. Cupboards locked, drawers with weapons available, guns secured. Weapons: Note the location of guns or weapons, availability, loaded, safety attempts. Samples: Soil; Carpet; Ceiling; Clothing: If the lab is unattached and the children play in the surrounding area, a sample of the dirt should be taken for testing of waste. School Records: Interview the teacher to see if the child has been having trouble in school that correlates with their exposure to manufacturing or drugs. See if the teacher has an opinion as to whether the child is not developing at the same pace as the other children. Inquire as to attendance and any conversations with the parent. Prior Calls: Submit a record of the prior number of calls to the house and the reason for the response. Please include case numbers. Toxicology Screen: Have the child tested for the presence of controlled substances or related toxic chemicals. At least have a urine sample collected immediately. Urine samples will yield the best result if the urine is captured within 4 hours of the detention. It is important, too, that the testing of the sample be done with equipment calibrated for any detectable levels. Some facilities that use equipment for adults might miss the presence of any level of controlled



substance because the machine is calibrated for an adult which allows for certain detectable levels. Hair samples are collected by many counties, including Butte. The hair sample advantage is that the sample details a longer period of time. The disadvantage is that it details a longer period of time. A defendant can likely explain an exposure captured in the hair sample to have been a period of time when the child was not in their care or custody. It is important to pin the defendant down on who, and over what period of time, has had access to the child or where the child has been. Fire/HazMat: Obtain an opinion, and report, at the scene from fire personnel on the issue of: if the lab or chemicals caught fire, how quickly would the lab structure burn; spread to residence area;, what survivability of occupants (child); any escape routes, smoke detectors, fire walls, fire extinguishers; what ‘fire loading (debris)’ contributes to the spread and danger; how do the lab chemicals contribute to the danger; what is the flammability of the chemicals. Fire personnel’s report is given to the case agent who submits the report with the other investigative reports. It is important not to ask fire personnel to opine beyond their expertise. But they know fire, and that is a central theory of endangerment. Working with Fire: Fire personnel properly opine on fire, the potential for fire, the flammability of liquids and chemicals and dangers in the home affecting survivability. Conditions in homes include labs for Butane Honey Oil, methamphetamine labs, in door marijuana cultivation, and dilapidation due to drug use or sales. In working with fire personnel, or any other outside agency, it is important to not ask that agency to opine on child endangerment. The goal is to have them at the scene, assess the dangers, likelihood of harm or death, survivability of occupants, and how the occupants contributed to the dangers. Once fire personnel have made these assessments, ask for a copy of the report and provide that as discovery to the defense. These are roughly the goals: 1. Introduce yourself and case agent to the fire personnel. Exchange cards; take names. 2. Explain your role as specially assigned to review cases where children are in danger. 3. Advise fire personnel you are interested only in their opinion on fire, and are not asking

them to discuss child endangerment, meth labs, or conclusions about any crimes. 4. Ask them to author a handwritten report in the field, and to share it with you before they

leave, in case you are unclear on terms, or have questions. 5. Advise fire personnel the case agent will call in a few days to get credentials and do a

phone interview and that this will save the fire personnel from having to come to court, unless a trial is set several months down the road. Child Abuse Response Team (CART) Interviews:



After the children are removed from the home, DEC children are interviewed in a child friendly setting, by a social worker who asks appropriate questions designed to reveal information about the impact of the narcotics related crimes on the safety of the child: did the child assist in the meth lab, was the child exposed to the lab or other hazards, any physical or sexual abuse, etc. The interviews are monitored in a separate room by the DEC prosecutor, officer, and children’s’ services worker. The interview is captured on DVD (two copies) which is provided as part of discovery. This assists the prosecutor in charging decisions, evaluating the child’s ability as a witness, and alerts the defense that the child is able to articulate, not only the crime, but the poor quality of their life with the defendants. The DDA should ask defense related questions to minimize the need for further contact in preparation for trial. And, be alert to disclosures by the child of other types of victimization. Often, the child can author drawings of drug paraphernalia or manufacturing items they have seen in the home. XIII. RULES OF EVIDENCE WITNESS STATEMENTS Crawford v. WA (2004) 541 US 36: Statements Made Out of Court for Court Can Be Excluded In Crawford v. Washington, the US Supreme Court addressed the admissibility of “testimonial” statements made outside of court that are later offered in court when the witness is not there: Crawford, and its progeny2, have established that “testimonial” statements made outside of court, to a government agent and with an eye toward court proceedings, by a witness who is not available for court, describing a past crime, cannot be presented in court under the hearsay rule -‐ unless it is a statement of an on going emergency. Officers should be aware of this evidentiary rule, which is based on Sixth Amendment confrontation principles, as it will likely affect the court proceedings. Courts are still developing the range of application of Crawford: Hearsay and confrontation issues were addressed in Melendez-‐Diaz v. Massachusetts (2009) WL 1789468 where the United States Supreme Court held that a notarized written affidavit of an analyst was hearsay. In People v. Geire (2007) 41 Cal.4th 555, the California Supreme Court held that statements of lab results, were admissible.

2 See also Davis v. Washington (2006) 547 US 36.



Most recently, in People v. Rutterschmidt (2009) DJDAR 12289 B209568, the California Court of Appeal upheld an Expert’s testimony as to the work done by a non-‐testifying analyst. The Expert, testified to peer review, type of analysis and the results. The court in Rutterschmidt determined that the type of testimony in that case was not the type to which Crawford likely applied. ETHICAL REQUIREMENTS BRADY OBLIGATONS: EXCULPATORY EVIDENCE In Brady v. MD (1963) 373 US 83, the United States Supreme Court clarified a fundamental principle of Federal Constitutional Due Process: exculpatory evidence in the hands of law enforcement must be provided to the defense at any stage of the criminal proceedings where the evidence affects a material issue in the case. This means that if law enforcement has tangible evidence favorable to the defense, it must be turned over to the defense. “Favorable” includes casting doubt on witnesses and their statements including opinions of experts, even law enforcement experts. “A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” (Youngblood v. West Virginia (2006) 547 US 867, 870.) The United States Supreme Court has extended the rule to include “impeachment” evidence. (Youngblood at p. 870 citing United States v. Bagley (1985) 473 U.S. 667.)3 The Court in Youngblood summarized the application and effect of Brady: “A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. [Citation.] This Court has held that the Brady duty extends to impeachment evidence as well as exculpatory evidence, [Citation] and Brady suppression occurs when the government fails to turn over even evidence that is "known only to police investigators and not to the prosecutor," [citation] ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"). "Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,'" [citation] although a "showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal,"[citation.] The reversal of a conviction is required upon a "showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." [Citation.]” (Youngblood at pp 869-‐70.) In Youngblood, the conviction was reversed.

3 After a conviction, an officer read an exculpatory note but told witness to destroy the note and refused to take the note as evidence.



Penalty for violation of this fundamental rule of Due Process can result in suppression of evidence at trial, reversal of a jury verdict, civil liability, or professional sanctions. A Brady concern should always be discussed with the DA and your supervisor. Officers as Experts: Brady applies to the opinions of experts, even officers assigned to a particular unit. Whether the opinion is for “manufacturing” or “for sale” or “gang related”-‐ an officer must not be in a position to give an opinion they do not hold. A prosecutor or department must make clear with the officer/expert that the witness has the latitude to say “no.” Holding or stating a contrary opinion, even personally, can generate a Brady obligation to reveal that opinion to the defense and the court. An officer is expected to give their opinion on an objective review of facts and evidence and experience. It is expected that opinions will differ and vary given the particular facts of each case. XIV. OFFICERS AS EXPERTS Prosecutions for HS 11379.6, HS 11378, HS 11359, HS 11351, and PC 186.22 often rely on expert testimony from officers to help the court or jury determine the intent of the defendant. Expert opinion is limited to areas on which the expert is qualified. No expert is allowed to say the intent of a particular defendant. Rather, the opinion must be whether facts or conduct are consistent with, hypothetically, a particular intent. No expert is allowed to give legal conclusions nor opine on whether the defendant is guilty. An officer cannot opine whether conduct or conditions are “child endangerment within the meaning of PC 273a.” An opinion from a qualified officer could include whether the officer has an opinion as to whether drug sales pose any dangers. It would then be up to the judge or jury to decide whether the conduct violated PC 273a. Expert testimony is controlled by statute, Constitutional principles of due process, and rules of discovery. The witness and the DDA should discuss, well advance of court, the nature of the opinion sought, the information on which the opinion is based, and that disclosure of both has been provided to the opposing side. Ethical considerations abound. The value of an expert’s opinion rests largely on (1) the objectivity of the person (2) the actual experience in the subject matter (3) understanding of the limits of the opinion being sought. Be sure that the experts understand that the value of their opinion will be determined by their training, education and experience. As such, any expert will be required to provide a Curriculum Vitae (CV), Resume, or “Hero Sheet” prior to the Preliminary Hearing or trial. All expert



qualifications, opinions and tests will have to be provided prior to trial so that the information is available for the defense. Late coming or undisclosed test results or opinions can result in a continuance of the hearing or trial or even suppression of the evidence. Rules of Discovery Apply to Experts: including officers who are testifying as an expert.4 CODE SECTIONS FOR EXPERT TESTIMONY EVIDENCE CODE § 720: Qualification as an expert witness “(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert. (b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.” How It Works A witness called as an “expert” is proffered to the court on that status after a showing of the qualifications of the witness. The court can accept or decline the “expert” designation. The decision often turns on the combination of the field and training experience of the witness and the nature of the opinion as it relates to issues in the case. These matters are often discussed prior to trial in a hearing pursuant to EC 402. EVIDENCE CODE § 721: Cross-‐examination of expert witness (a) Subject to subdivision (b), a witness testifying as an expert may be cross-‐examined to the same extent as any other witness and, in addition, may be fully cross-‐examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion. (b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-‐examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

4 California Penal Code § 1054.1. Information to be disclosed by prosecution The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. (b) Statements of all defendants. (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. (e) Any exculpatory evidence. (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.



(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion. (2) The publication has been admitted in evidence. (3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, relevant portions of the publication may be read into evidence but may not be received as exhibits. EVIDENCE CODE § 801: Opinion testimony by expert witness “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” How It Works This means that the “opinion” must be at least helpful to the jury. And, the Expert can reach the “opinion” through a combination of their own experience and training, as well as relying on the expertise of others. And, the information relied on can be hearsay statements, reports, conversations with other officers or facts not commonly relied on by similar Experts. A testifying Expert cannot rely on another expert’s opinion. EVIDENCE CODE § 802: Statement of basis of opinion “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” How It Works Being called as an Expert witness is not the end of the issue. A court can decline to accept an expert opinion or require (through Evidence Code 402) that a hearing be held on the issue of the expertise of the witness. At either the 402 hearing, or during the testimony, opposing counsel can “voir dire” the witness: this means to ask further questions just on expertise before the witness is allowed to give an opinion.



EVIDENCE CODE § 805. Opinion on ultimate issue “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” How It Works An expert cannot give an opinion that is not supported by the facts of the case, and cannot opine to the intent or state of mind of a defendant. Furthermore, an expert MUST have the latitude in their assignment, department, and with the DA to reject the designation as an expert IF the witness does not honestly and objectively hold the opinion sought from them. A blanket opinion, the same in every case, loses credibility and is a ripe area for cross examination. WHEN SOMEONE ELSE IS AN EXPERT In felony cases, the prosecution might need an expert to testify to the likelihood of great bodily injury. The type of case and theory of endangerment will dictate whether experts, such as psychologists, fire personnel, toxicologists, or criminalists, are needed. If gathering this information for purposes of trial, the witness need not testify at the Preliminary Hearing if an officer has (a) personally interviewed the expert witness and (b) gone over the expertise and training of the expert in rendering their opinion. The personal interview of the witness for a Prop 115 Prelim must leave the testifying witness with enough information that any opinions coming from an expert can be testified to at the Prelim by the officer. PREMILINARY HEARINGS: Prop 115 and Hearsay Proposition 115 allows law enforcement officers who either received certain POST training or have 5 years of law enforcement experience, to testify using “hearsay” statements at a Preliminary Hearing, unless it violates other hearsay rules. This is codified in California Penal Code section 872(b), et seq, in relevant part: “(b) … the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer … relating the statements of declarants made out of court offered for the truth of the matter asserted. … Any law enforcement officer … testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.” As such, the years of service, or training received, will be the first and primary question at a Preliminary Hearing. An officer qualified as stated above may then offer the “hearsay”



statements of witnesses (expert or percipient) if the statements are no in violation of other rules such as Miranda or Crawford, and those statements do not contain someone else’s statement (double hearsay.) It is imperative the officer’s testimony at Prelim is based on actual conversations with those witnesses and not simply reading another officer’s report. Hearsay: Hearsay is a statement made outside of court, by a person, orally or in writing, and the statement is being offered in court as evidence that the facts then stated are true.5 A helpful tool is to prepare questions for the officer to follow when talking to an expert for whom the officer is going to testify at Prelim. Below are examples of pre-‐preliminary hearing questions: PREPARATION FOR A PROP 115 PRELIM: OFFICER’S CHECK LIST: PC 273a(a) 1. Interviewing a Doctor for Opinion as to Likelihood of Great Bodily Harm A. CREDENTIALS: (After reviewing Doctor’s Resume discuss briefly the content) 1. What Is Current Occupation; How Long; Title; Range of Duties; # Hours Per Week 2. What Experience Does Doctor Have Treating Children; Current or Past 3. Current Associations; Memberships; How Long In Each 4. Past Relevant Occupations; How Long B. POLICE REPORT: (After faxing police report, discuss details of investigation) 1. Discuss All Facts But Focus On:

Children: age of each; duration of exposure that day and over time; location at time of detention or where they live in relation to the lab.

Lab/Contaminated Area/Danger at Issue: size of area where danger was; lack of any

ventilation; odors, strength and possible source; chemicals found-‐ open or closed containers, their accessibility to each child; any evidence of meth use in front of or close to the kids, # people using; use of household items in the lab.

C. OPINION: Based on the police report, discussion of the case, and the Doctor’s education and

experience: Ask the Doctor If the Doctor Has An Opinion: 1. Whether Each Child Is Likely To Suffer Either A “Significant” or “Substantial” Injury 2. For a child of this age: What Likely Injury Why is it Significant/Substantial and 5 California Evidence Code § 1200. The hearsay rule: (a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. [But see the many exceptions thereafter in the Code.]



Why is the Potential Harm Likely To Occur In A Child of this Age on these Facts 3. Repeat 1 and 2 and Substitute For Any Additional Likely Dangers: Lab Odor Exposure; Used Meth Smoking Pipe; Stuck By Bloodied Used Needles

Skin To Skin Contact With Iodine; Red Phosphorous; Sodium Hydroxide; Hydrochloric Gas; Muriatic Acid; Drugs; Ingesting Meth Residue

D. WRITE A REPORT DETAILING YOUR CONVERSATION 1. Proposition 115 Hearsay Requires You To Have A Conversation With The Doctor. You Cannot Simply Send The List Of Questions To The Doctor 2. Send Your Written Report To The DDA PREPARATION FOR A PROP 115 PRELIM: OFFICER’S CHECK LIST: Criminalist Lab Cases, Chemicals, Analysis of Samples I. CREDENTIALS (After reviewing Criminalist’s Resume discuss briefly the content) A. EMPLOYMENT How Are You Employed What Title How Long Range of Duties Meth Lab Sampling Part of Regular Course of Duties # Meth Labs Sampled B. EDUCATION Education Qualifying You For Position Did You Complete Studies In College: Organic Chemistry; did it cover Solvents In-‐Organic Chem covering Red Phosphorous; White Phosphorous Courses Involving Iodine; Amphetamine; Methamphetamine C. TRAINING and EXPERIENCE Are You Trained in Chemical Instrumental Analysis; what instruments Are You Trained In Arson Analysis: How does that involve Solvents (fire debris samples for solvents)

Are You Trained in Solvents (Toluene; Acetone); Red Phosphorus; Iodine Did You Train on Issues of the Nature; Flammability; Hazards of these substances



D. D. THROUGH EDUCATION, TRAINING AND EXPERIENCE on Manufacturing Meth Are You Familiar With: Precursors for Meth; Reagents; Solvents; Describe; Acids; By-‐Products; Please Describe How these are involved in Manufacturing; Common Stages II. II. EXPLANATION OF CHEMICALS A. A. RED PHOSPHORUS: What Are The Dangers Associated With Heating Red P. How Does White Phos. Develop From Heated Red P. And Iodine What Are The Dangers Associated With White Phos. What Is Phosphine Gas Is White Phos. Explosive or merely flammable What Does “Shock Sensitive” Mean re: White Phos. How Much Friction Needed For White Phos To Ignite

B. SOLVENTS

Do Toluene, Brake Cleaner, Camp Fuel and Acetone Have Volatile Vapors How Easily Will The Vapors Ignite What Type of Spark Will Ignite The Vapors; {Car Backfire; Light Switch; Electrical} Do The Vapors Have Odor, Color How Far From Their Source Will Vapors Travel C. D. IODINE What Is It; How Is It Used To Make Meth; What Legitimate Use/Amount What Hazards If Skin Contact; If Fumes Inhaled How Does Iodine Contamination Affect Areas; Ongoing Contamination D. E. HYDROGEN CHLORIDE GAS What Is It How Can It Be Lawfully Obtained How Is It Made Clandestinely; How Found In Meth Labs What Hazards If Skin Contact; If Fumes Inhaled How Does HCL Contamination Affect Areas; Ongoing Contamination III. III. RESULTS OF SAMPLES TESTED A. A. FOUNDATION Familiar With Investigation Conducted By [Agency name] On [date] At [location info] Did You Respond To The Scene; Collect Samples; Receive Samples From [name agency] Case Number [ ] Co

B. TESTING and RESULTS Test Sample # _____________ Result: _______________ Significance: _________



C. OPINION Do You Have An Opinion Whether: Samples Collected in this case Indicate Meth Processing; Which Samples: ___________________ _________________ ________________ __________ How Are Results Indicative of Meth Processing Do Results Indicate Any Particular Stage Of Meth Processing Chemical Synthesis present: ___________________________________________________ Chemical Extraction present ___________________________________________________

AFTER THE INTERVIEW – Author A Report and Send it to the DDA for Discovery Remember-‐ Personal Detailed Interview Required Simply asking if their written report is their opinion is insufficient for the Prelim. And, if not specifically detailed, the answer can be barred as Hearsay.



XVI. SETTING UP A DEC RESPONSE TEAM -‐ Butte County Model Success of a DEC Response Team depends on a change in perspective, a unified goal, adoption of universally unpopular ideas, and a cell phone. A DEC team is really just all of the agencies that will sometime be called to the home, children or adults, to agree to work together to investigate fully and remedy appropriately the destruction evidenced by drugs. A DEC Team Is Simply An Agreement To Prioritize Your Case Load For Reasons: 1. Humanitarian. No animal should live in such conditions; certainly not a child 2. Practical. Break the cycle. a. Just like domestic violence, drugs are learned behavior. Gang activity is learned behavior. b. Save yourself time now by taking a child out of a criminal lifestyle, rather than see them in

juvenile, dependency and adult court later. A DEC Core Principles 1. Willing to disrupt the biological family to save the child. 2. Pursues drug crimes as criminal conduct. 3. Adheres to the public agency obligation to protect all victims, at all times. 4. Children are victims but victims are witnesses 5. Investigations should be so complete defendants can’t force the kids to testify GEM Core Principles 1. Gang activity is learned behavior 2. Parents who are active in violent behavior teach violence by example 3. Parents who expect retaliation for their crimes are accountable for living a lifestyle

inviting violence toward their children 4. Child Endangerment charges address: children raised in a gang home, in gang clothing, in

harms way, will be a target, unintended victim or repeat offender in the future Memorialize Your Commitment And Your Agreement To Work As A DEC Team Once you have participants committed to these same goal and ideas, reduce your policies to writing as a Memorandum of Understanding (MOU). The participating agencies must agree to assign participants with full commitment to respond as needed, to protect and pursue each agency’s professional interests and mandates. And, to always consider the best interest of the child, first. An example is seen when a meth lab is suspected in a home with a child. Although prosecution on the HS 11379.6(a) might improve with more time, the continuing endangerment to the child must be the first concern. As such, the case takes priority with narcotic officers, the prosecutor, and children’s services.



DEC MOU EXAMPLE: DEC TEAM MEMORANDUM OF UNDERSTANDING Purpose: The Butte Interagency Narcotics Task Force (BINTF), Children’s Services Division (CSD), and the Butte County District Attorney's Office work cooperatively to facilitate a coordinated response to families involved in drug manufacturing, sales, and possession of drugs when children are expected to be present.

1. Identify a social worker with knowledge and training in the area of criminal investigation, and familiar with the inter-‐workings of the narcotics task force. Provide a pager and be assigned to DEC program to respond as needed. 2. BINTF agents at a site where drugs, hazardous conditions, unfit home, or parents arrested will immediately page assigned social worker. BINTF agents provide information and lead time when possible to allow completion of a history check and case review by assigned social worker. Social worker will participate in narcotics briefing prior to a response if possible. 3. Social worker and BINTF agent will assess, document, and photograph conditions of house and children. Interviews of parents and children conducted. All cases where hazardous or unfit conditions exist accessible to children. Social worker will detain. 4. Social worker transports children to local hospital for medical examination and urine analysis with chain of evidence on toxicological positive sample saved for court. 5. Exchange of information relevant to the case will proceed as appropriate to provide timely support in any juvenile or criminal court action that arises. 6. The District Attorney agrees to review and prosecute all appropriate cases where children are exposed to drugs or hazardous toxic materials involved in the clandestine manufacturing of controlled substances. A deputy district attorney, trained in narcotics prosecution, is assigned 24/7 to respond as needed to assist in case analysis; and will vertically prosecute all appropriate charges.



SEARCH WARRANT STATE OF CALIFORNIA -‐ COUNTY OF BUTTE

SEARCH WARRANT AND AFFIDAVIT (AFFIDAVIT)

Detective [___________], being sworn, under the penalty of perjury, swears that the information contained within this Search Warrant and Affidavit and the attached and incorporated Statement of Probable Cause is true and that based thereon, she/he has probable cause to believe and does believe that the property described below is lawfully seizable pursuant to Penal Code Section 1524, as indicated below, and is now located at the locations set forth below. Wherefore, affiant requests that this Search Warrant be issued. __________, [Affiant Signature] NIGHT SEARCH REQUESTED; YES ( ) NO ( )

Detective ( (SEARCH WARRANT)

THE PEOPLE OF THE STATE OF CALIFORNIA TO ANY SHERIFF, POLICEMAN OR PEACE OFFICER IN THE COUNTY OF BUTTE: proof by affidavit having been made before me by Detective [__________] that there is probable cause to believe that the property or persons described herein may be found at the locations set forth herein and that it is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by "x" in that it:

__was stolen or embezzled X __was used as the means of committing a felony

__is possessed by a person with the intent to use it as a means of committing a public offense __or is possessed by another to whom he/she may have delivered it for the purpose of concealing it or preventing its discovery __is evidence which tends to show that a felony has been committed or that a particular person has committed a felony __tends to show that sexual exploitation of a child, in violation of Penal Code Section 311.3, has occurred or is occurring __there is a warrant to arrest a person, to wit:______________________________________ __a provider of electronic communication service or remote computing service has records or evidence, as specified in Penal Code section 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of a person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery __tends to show a violation of Labor Code section 3700.5 or tends to show that a particular person has violated Labor Code section 3700.5.



YOU ARE THEREFORE COMMANDED TO SEARCH: The property located at: [__________________________________], Butte County, California, further described as: [__________________________________], and any and all rooms, attics, basements, garages, storage rooms, trash containers, outbuildings, trailers, campers, and surrounding grounds used in connection with said premises; And the person(s) of [____________________________]; [_____________________________]; And any and all vehicles owned, operated or under the dominion and control of the person(s) listed above which are at the location listed above at the time this search warrant is executed; FOR THE FOLLOWING PROPERTY: Drug Crime Evidence Methamphetamine and drug paraphernalia, consisting in part of and including hypodermic needles, hypodermic syringes, spoons, cotton, paper bindles, plastic baggies, gelatin capsules, condoms, balloons, milk sugar, scales and other weighing devices, playing cards, measuring devices, razor blades, mirrors, straws and other inhaling devices, measuring devices, strainers and containers commonly associated with the storage and/or use of methamphetamine; any articles of personal property tending to establish and document sales, possession for sale, and possession of methamphetamine, consisting in part of and including U.S. currency, buyers' lists, sellers' lists, and ledgers; any articles of personal property tending to establish the existence of a conspiracy to sell or to possess methamphetamine, personal telephone books, telephone bills, address books, papers and documents containing lists of names, storage locker receipts, items of property tending to establish the identity of persons in control of the premises, vehicles, areas, containers being searched, consisting in part of and including utility company receipts, rent receipts, addressed envelopes, keys, vehicle registration, vehicle maintenance receipts, gasoline purchase receipts, photographs and undeveloped film; and evidence showing the traffickers in controlled substances receive significant unexplained and unreported income, including State and Federal tax records, bank and financial institution records, statements, canceled checks, money orders, deposit slips, check and savings books, keys to safety deposit boxes, business and personal ledgers, accounting records and personal computer records that include recordation of financial information. This evidence will also assist the government in identifying property, both real and personal, which constitute ill-‐gotten gains, seizable by the government under existing law; and officers may answer the telephone and converse with callers who appear to be calling regarding narcotic trafficking, and may record the conversations without revealing to them the officer's true identity; and may seize numbers from telephones or pagers as evidence of narcotic trafficking; [Marijuana] [Cocaine] [Heroin]



Firearms Gangs Child Endangerment Evidence: And items which tend to show that a child was placed in a situation endangering the child’s health, and items tending to show the person(s) responsible for the child’s endangerment, including: evidence of any carpet, floor, or soil, or any area exposed to contamination by the use of manufacture of a controlled substance or of a precursor or chemicals; photographs of the living conditions capturing exposed wiring, feces, sleeping areas, bathroom conditions, kitchen and food supplies; evidence of physical abuse; evidence of relationship between a child endangered and the party responsible found in the location for which this warrant is sought; evidence of spoiled or contaminated food; evidence of stains on a child’s clothing; evidence of expired medications to which child had access; evidence of dangerous weapons or conditions to which any child is/was exposed, at the location for which this warrant is sought, and to seize all such items as evidence of child endangerment. AND TO SEIZE IT IF FOUND and bring it forthwith before me, or this court, at the courthouse of this court. This Search Warrant and incorporated Affidavit was sworn to as true and subscribed before me this_______day of______________, 20___, at________ a.m./p.m. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it. __________________________NIGHT SEARCH APPROVED: YES ( ) NO ( ) (Signature of Magistrate) Judge of the Superior Court Date and Time of Warrant Execution -‐ Commencing_________________ Ending ____________________



SAMPLE STATEMENT OF PROBABLE CAUSE LANGUAGE FOR A DEC SEARCH WARRANT

YOUR AFFIANT is a police officer for the State of California employed by [Describe Employer], currently assigned to the [______ or Task Force.] See Attachment "A" for YOUR AFFIANT's training and experience which is attached hereto and incorporated herein by reference. [Hero Sheet, CV, Resume] YOUR AFFIANT is conducting an investigation into the activities occurring at [Suspect’s address] and the suspects who reside there by the names of [Suspect’s names and DOBs] This investigation has led YOUR AFFIANT to believe that the residence of [Suspect’s address] is being used to: [Describe the Crimes: traffic methamphetamine, use methamphetamine, manufacture methamphetamine], in violation of: [List the Code Sections and whether it is a Felony or Misdemeanor.] In addition, YOUR AFFIANT believes that [Describe # and names and DOBs of Children] children, are victims of child endangerment as a result of living in a residence where the crimes of: [Crimes Described traffic methamphetamine, use methamphetamine and/or manufacture methamphetamine] are occurring while under the care or custody of [Suspects listed above.] YOUR AFFIANT’S opinion of probable cause is based on information received from the following sources: [Describe Sources: i.e. confidential informants, information from the County Welfare Department, information from County Children’s Services Division], as well as YOUR AFFIANT’S own investigation. In reference to [Suspect’s address], YOUR AFFIANT requests to seize evidence of the crime of child endangerment, Penal Code section 273a, a Felony, including controlled substances or drug paraphernalia accessible to children, and to photograph the living conditions capturing dangers to the child(ren) discovered therein including evidence of exposed wiring, human and animal feces, sleeping areas, bathroom conditions, kitchen and food supplies; evidence of physical abuse; evidence of relationship between a child endangered and the party responsible found



in the location for which this warrant is sought; evidence of spoiled or contaminated food; evidence of expired medications to which the child had access; evidence of dangerous weapons or conditions to which any child is/was exposed, at the location for which this warrant is sought, and to seize all such items as evidence of child endangerment. YOUR AFFIANT believes, based on the investigation detailed herein, that service of this search warrant will produce evidence of the felony crime of child endangerment (273a(a) of the California Penal Code). Insert Statement of Facts Supporting Probable Cause: Examples: Received information from Children’s Services regarding drug sales in the home Spoke with neighbors who reported traffic which I know is consistent with drug sales Ran license plates of cars at the home which came back to people convicted of drug crimes School reports that children do reside at address sought in this warrant School reports that children arrive at school dirty, hungry, lice, no parent responds Affiant drove by residence and saw children’s toys in the yard CI # 1 detailed drug buys from suspects; in exchange for consideration Suspects have criminal history for drug abuse Emergency Response Referral PG& E had been turned off Insert Your Own Expertise On Child Endangerment and Drug Lifestyle Example: YOUR AFFIANT knows from training and experience, as detailed in Attachment A, that in cases of [insert type of case: Neglect; Drug Sales; Medicinal Marijuana Grows; Gang Home]: [Neglect] that persons who receive Public Assistance benefits to support their children and who are addicted to controlled substances often use their Public Assistance to support their drug habit and fail to provide the basic necessity for their children for whom they received the Public Assistance. that persons who receive Public Assistance benefits fail to report accurately on their monthly income reports any changes in their household as to who is residing in or out of their family and do not report additional income on their monthly income report for the sales of controlled substance. [Drug Manufacturing] that manufacturing methamphetamine is an inherently dangerous act, and one in six methamphetamine laboratories in the State of California are discovered because of fire and



explosion. YOUR AFFIANT is concerned that the children living in the residence described in this affidavit are at risk of chemical contamination, injury and/or death due to fire and explosion and it is the opinion of YOUR AFFIANT that manufacturing methamphetamine, storing the necessary chemicals, processing the finished product, is conduct which endangers the health of the children described herein to a degree that it is likely to result in great bodily injury. YOUR AFFIANT basis this opinion on the number of hours trained, and field hours worked, on child endangerment as detailed in Attachment A. [Drug Use Sales Possession] that those who use or sell methamphetamine are often paranoid and that the county suffers several acts of violence, use of firearms, by those using, buying and selling methamphetamine. Based on training as a narcotic officer, YOUR AFFIANT is aware that the potential for violence is increased with the use, possession or sale of methamphetamine and often violence will include use of weapons thereby placing children in a situation likely to endanger their health to a degree that great bodily injury would likely result Conclusion Based on information contained in this affidavit, as well as YOUR AFFIANT's experience and expertise, and to the observations made by YOUR AFFIANT, YOUR AFFIANT has probable cause to believe and does believe that the grounds for issuance of a search warrant exists as required by Penal Code Section 1524, therefore, YOUR AFFIANT requests a search warrant be issued for the search of the property and person described, and for the seizure of said property or any part thereof to be disposed of according to law. I declare under penalty of perjury under the laws of the State of California that the facts of the foregoing Statement of Probable Cause are true and correct.

Documents

Case Law Basis for Endangerment Public Safety through