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California Narcotic Officers’ Association

34th Annual Training Institute


San Diego, California
November, 1998

DRUG ENDANGERED CHILDREN

Presenters:
SUE WEBBER-BROWN
Dist. Attorney’s Investigator
Butte Interagency Narcotics Task Force

MARTY HORAN
Special Agent Supervisor
Department Of Justice, Bureau Of Narcotic Enforcement

MIKE RAMSEY
District Attorney
Butte County District Attorney’s Office
In the interest of protecting children who live in homes where drug
manufacturing, production and sales occur, Butte County has developed the
Drug Endangered Children Program. This workshop will describe how Butte
County created the DEC protocol and describe the need for Child Protective
Services, Law Enforcement Officers and the District Attorney's Office to
present a united front when assessing the needs of endangered and
forgotten children. This protocol is designed to clarify the responsibility of
each agency and define how agencies can successfully work together.

The speakers will discuss the impact that Narcotics Investigators have
on the child victims of Clandestine Methamphetamine Laboratories and drug
endangered homes. Portions of the class will include discussions on:

*Building a better case


*Prosecution tips
*Legal liability to protect children
*Case Law
*Charging Child Endangerment
*Increase guilty pleas
*Developing children as witnesses
*Court testimony
*How to develop protocol
*Utilizing CPS
*Medical evaluations

The Drug Endangered Children Program aids in Juvenile Detention


cases, investigation and successful prosecution of filing child endangerment
charges and medical evaluations of children.
BUTTE INTERAGENCY
NARCOTICS TASK FORCE
Post Office Box 2008
Oroville, California 95965-2008
(530) 538-2261/ATSS 474-2261
FAX (530) 532-1772

* INVESTIGATION OF DRUG ENDANGERED CHILDREN

* DRUG ENDANGERED CHILDREN PROCEDURE

* MEMORANDUM OF UNDERSTANDING

* SAFE WORK PRACTICES

* CHEMICAL CHECK-OFF LIST FOR EMERGENCY


PERSONNEL

* GUIDELINES FOR TREATING/EXAMINING CHILDREN

* SAMPLE REPORT
DRUG ENDANGERED CHILDREN PROGRAM (DEC)

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
and found in the home.

Procedure:
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
and unfit conditions exist, i.e. drugs and/or chemicals found
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.
CSD/BINTF LIAISON SAFE WORK PRACTICES
Job Classifications at Risk of Exposure:
* Social Workers II, III, IV

Description of Job Tasks That May Pose Risk of Chemical Exposure:


* Entering homes of families involved in the manufacturing, sales,
and/or
possession of drugs;

* Removing the items of children from homes of families involved in the


manufacturing, sales, and/or possession of drugs;

* Close contact with children from homes of families involved in the


manufacturing, sales, and/or possession of drugs;

Safe Work Practices: (Mandatory)

Establish who is certified in chemical exposure evaluations on the Butte


Interagency Narcotics Task Force (BINTF). The person will act as the case
agent and evaluate chemical exposure to children and personal items.

Follow all instructions by the BINTF case agent to minimize direct and
indirect chemical exposure.

If it is determined that chemical exposure to the child or children is such that


others can be exposed as a result of close contact, BINTF will advise the
Social Worker on proper personal protective equipment to be used.

Do not enter a home until clearance has been issued by the BINTF team.

Latex gloves shall be worn in all situations.

Take only those items necessary and are not contaminated with drugs or
chemicals.

Items that are contaminated with chemicals or bodily fluids shall not be
removed from the home. Blood contaminated items are considered
regulated waste and shall be disposed of in biohazard bags and must be
disposed of accordingly. Items contaminated with chemicals used in the
manufacturing of drugs are considered hazardous waste and must be
disposed of in biohazard waste containers.

Wash hands and any exposed skin areas following the removal of latex
gloves.

Transport the child or children to the nearest medical facility for examination
and blood or urine tests to determine whether the presence of chemical
substances exist.

Seek medical treatment immediately if symptoms of chemical exposure


occur during or following a warrant being served. (i.e. dizzy, nausea, etc.)
Do not drive a vehicle if symptoms are recognized. Call 911.
CHEMICALS OF A CLANDESTINE DRUG LAB

The following is a list comprised of chemicals that have been normally found
in clandestine laboratories. A narcotics officer or social worker, following
instruction of a narcotic officer, will check off the chemicals found in a
methamphetamine lab where children are present. This form is then
delivered to the hospital with the children for medical examination.

Check chemicals found at the time of detention.

[] Ethyl Ether [] Red Phosphorous


[] Acetone [] Sodium Thiosulfate
[] Acetaldehyde [] Hydrogen Chloride Gas
[] Freon R-11 or R-12 [] Palladium
[] Methanol [] Methylamine

[] Mercuric Chloride [] Palladium on Carbon

[] Phenyl-2-propanone [] Thinyl Chloride

[] Phenylacetic Acid [] Phosphorous Trichloride

[] Acetic Anhydride [] Phosphorous Pentachloride

[] Anhydrous Sodium Acetate [] Chloroform

[] Benzene [] Ethanol

[] Ephedrine [] Hydriodic Acid

[] Sodium Hydroxide (Lye) [] Potassium Dichromate

[] Toluene [] Sulfuric Acid

[] Iodine Crystals [] Muriatic Acid


These are commonly found chemicals used in the manufacture of
methamphetamine, as we find them in clandestine laboratories in Butte
County. However, these are not the only chemicals with which we come in
contact. There are a number of other similar solvents, reagents, and acids
that are not listed, but are commonly substituted for the ones listed above.
BUTTE INTERAGENCY
NARCOTICS TASK FORCE
Post Office Box 2008
Oroville, California 95965-2008
(530)538-2261/ATSS 474-2261
FAX (530)532-1772

TO: Attending Physicians, Hospitals, Health Care Workers,


and Facilities

FROM: Butte Interagency Narcotics Task Force

GUIDELINES FOR TREATING/EXAMINING


CHILDREN FROM DRUG ENVIRONMENTS

It has recently become a combined effort of the Butte County District


Attorney’s Office, Butte County Child Protective Services and the Butte
Interagency Narcotics Task Force in the form of a new program entitled
Drug Endangered Children, to identify and treat all children that are taken
from environments where either chemicals used in the manufacture of
dangerous drugs have been maintained, or drug laboratories have been
located. Numerous clandestine laboratories have been seized this year
alone in Butte County. Most all the homes have had children present, either
dependant children or children over the age of 18 years. In most cases, the
appropriate charges have been filed against the caretakers or parents
resulting in charges of child endangerment and child abuse. The purpose of
the filing of these additional criminal charges, as well as the appropriate
health and safety charges, is a result of State and Federal research that has
determined that children exposed to the chemicals and drugs used in the
manufacture of clandestine laboratories affect the physical well being of the
children. In some cases, the chemical contamination is permanent and in
other cases it is short term. Additionally, these chemicals are found to be
flammable, explosive and corrosive.

This program is designed to identify those children, and at the time


that they are detained by Child Protective Services, transport them to the
nearest medical facility for examination and/or testing for contamination
poisoning or ill effects as a result of being exposed to a number of
chemicals and substances.

The following list is comprised of chemicals that have been normally found
in clandestine laboratories. Accompanying the following named chemicals
are the specific tests for determining the presence in the system.

1. Ethyl Ether Blood Test

2. Acetone Urine, blood or breath tests

3. Acetaldehyde Blood Test

4. Methanol Urine Test

5. Mercuric Chloride Mercury in Urine Test

The following listed chemicals commonly found in this area, are seized
from clandestine laboratories, and are chemicals that we do not have the
appropriate medical research books to correctly identify the type of test
necessary to determine a presence of substance in the human system.
These chemicals are as follows:

1. Phenyl-2-propanone
2. Phenylacetic Acid
3. Acetic Anhydride
4. Anhydrous Sodium Acetate
5. Benzene
6. Ephedrine
7. Red Phosphorous
8. Sodium Thiosulfate
9. Hydrogen Chloride Gas
10. Freon R-11 or R-12 (Trichlorofluoromethane)
11. Methylamine
12. Palladium on Carbon
13. Thinyl Chloride
14. Phosphorous Trichloride
15. Phosphorous Pentachloride
16. Chloroform
17. Ethanol
18. Hydriotic Acid
19. Acetone
20. Sodium Hydroxide (Lye)
21. Potassium Dichromate
22. Toulene
23. Sulfuric Acid
24. Iodine Crystals
25. Muriatic Acid

These are commonly found chemicals used in the manufacture of


methamphetamine, as we find them in clandestine laboratories in Butte
County. However, these are not the only chemicals with which we come in
contact. There are a number of other similar solvents, reagents and acids
that are not listed, but are commonly substituted for the ones listed above.

For consultation with a doctor that has extensive expertise in the area
of chemical exposure, we have made contact with Dr. Robert Ferguson
(Internal & Occupational Medicine and Toxicology) at the U.C. Davis
Medical Center in Sacramento. Dr. Ferguson is the primary doctor for the
California Department of Justice Clandestine Laboratory Program and he
reviews and examines all cases of chemical exposure by State personnel.
Dr. Ferguson can be reached at (916) 752-2330 Monday through Friday
8:00 a.m. to 5:00 p.m. (Pager 916-762-6372). Dr. Ferguson recommended
contacting the U.C. Davis Poison Center at 1-800-342-9293 if questions
arise in cases of acute exposure.

If you have any questions regarding these chemicals, or any


substances, please feel free to contact either Detective Sue Webber-Brown
or Commander Martin Horan of the Butte Interagency Narcotics Task Force.
We maintain a number of reference books, materials and handouts and are
constantly receiving updates from Drug Enforcement Administration and
other organizations who deal with trends in chemicals and dangerous
drugs/narcotics.
BUTTE INTERAGENCY NARCOTICS TASK FORCE
SAMPLE SUPPLEMENTAL REPORT

On June 16, 1998, at approximately 0930 hours, Detective Taber and Detective
Sue Webber-Brown responded to 50 Nelson Ave., Apartment B, Oroville, California
to assist Oroville Police Officer Jack Berry. Officer Berry conducted a probation
search of this residence and located stolen property and drug paraphernalia. 50
Nelson Ave., Apartment B is the residence of probationer Suspect 1.

Detective Taber and Detective Webber-Brown entered the apartment and searched
the southeast bedroom. Upon entering the southeast bedroom, Detective Taber
and Detective Webber-Brown could detect a strong chemical smell. In the
southeast bedroom on top of a large piece of plywood, which was supported by
wooden barricades, Detective Taber observed a white powder next to an open can
of Red Devil Lye. Detective Taber conducted a presumptive test of the white
powder for methamphetamine and found it to test negative. From training and
experience, Detective Taber knows Red Devil Lye contains sodium hydroxide,
which is extremely corrosive and can cause severe burns to eyes and skin and can
be fatal if swallowed. Again, Detective Taber observed the Red Devil Lye can was
open and was in hands reach of a four year old or a ten year old child.

On the floor of the southeast bedroom, Detective Taber observed several areas of
the carpet that were stained red and amber. There was a strong chemical smell
that was even stronger in these areas. It appeared to Detective Taber and
Detective Brown that this room had been used to manufacture methamphetamine.
The red stains appeared to have been made by phosphorous and iodine. While
iodine is commonly thought of as an antiseptic substance, it can be severely toxic
following accidental ingestion. Detective Taber knows from training and experience
that severe gastrointestinal injury could occur after ingestion of even a small
quantity of iodine. Detective Taber also knows from training and experience that
red phosphorous alone is generally non-toxic to touch, but when the powder dust
from red phosphorous is inhaled it can cause severe lung damage and/or death.
When mixed with other solvents or oxidants or recycled, red phosphorus is more
harmful and produces low level phosphine gas.
Note, the chemical odor emanating from the southeast bedroom is consistent with
the manufacturing of methamphetamine. Chemicals commonly used in the
manufacturing process, include materials that are extremely toxic to the mucus
membranes as well as the central nervous system. Any exposure onto the skin of
a young child could lead to severe burns, exposure to toxic levels of
methamphetamine, or absorption of sufficient solvent or iodine could cause severe
illness or death.

Detective Taber and Detective Webber-Brown interviewed a female subject


identified as Suspect 2. Suspect 2 stated Suspect 1, the probationer who resides
at this residence, had let her stay in the southeast bedroom on and off for
approximately two weeks. Suspect 2 gave Detective Taber and Webber-Brown
consent to search the room and her person. Suspect 2 is known to Detective
Webber-Brown from prior law enforcement contacts. Suspect 2 has been arrested
previously on drug related charges.

During the interview, Suspect 2 admitted she had stayed in the southeast bedroom
during the night of June 15, 1998. She also admitted letting a male subject into the
room that night and he had arrived with a can of Red Devil Lye and a two liter soda
bottle of liquid. Suspect 2 stated that the bottle was suppose to contain
methamphetamine, but something had gone wrong during the manufacturing
process and it didn’t turn out. Suspect 2 stated that she only knew the male
subject by his first name, but refused to state his name.

Also located in the southeast bedroom were small plastic baggies and cut straws
which are commonly used for packaging drugs.

Detective Taber also located a used glass smoking pipe in the bedroom belonging
to Suspect 1. Detective Taber observed that the apartment was unsuitable for
children to live in. The floors were stained and covered with dirt and debris and the
kitchen area was stacked with soiled dishes and rotting food. Stacks of dirty
clothes were on the floors of the hallway and bedrooms.

Given the fact an attempt at manufacturing methamphetamine had taken place the
previous night in the southeast bedroom, Detective Taber believes an
endangerment to the children’s health and safety exists as well. Detective Taber
has included with this report a set of photographs taken specifically of the
southeast bedroom and the items located. Note the carpet photograph clearly
shows the red and amber staining is extensive. This same staining, along with the
white powder, open can of Red Devil Lye, and scraping tool is depicted in another
photograph. A propane tank, a commonly used heat source, was located on the
bed and photographed in place.

Given the totality of the items located within the southeast bedroom, the condition
of the carpet, and the strong chemical odor, it is the opinion of Detective Taber and
Detective Webber-Brown that the manufacturing of methamphetamine had taken
place on the night of June 15, 1998. Both Detectives Taber and Webber-Brown,
also conclude through training and experience, that the southeast bedroom has
also been used on previous times as a place to manufacture methamphetamine.
BUTTE INTERAGENCY NARCOTICS TASK FORCE
SAMPLE SUPPLEMENTAL REPORT

Summary:

On September 26, 1994 at approximately 1345 hours, BINTF conducted a


probation search at 2237 A Street, Oroville, California, on Clyde. Also located at
that address was Linda, her four children, Bradley age ten, Sharde age 8, Nicholas
age 7, and Audrey age 6. Also in the home were Clyde’s children, Rocky age 11,
Heather age 10, and a common child belonging to Clyde and Linda named Joshua,
age 3.

CPS Worker Kim assisted BINTF in caring for the children named herein and
subsequently took the children into her care for placement after both parents were
taken into custody. The home was also determined to be unsuitable for the
children to reside in, as well as an endangerment to the children’s health and
safety.

Details:

Upon entering the living room at the 2237 A Street, Oroville, California address,
Detective Sue observed approximately six children in the living room with Linda
who was sitting on the couch in handcuffs. Clyde had already been transported to
the Butte County Jail.

Detective Sue surveyed the living room, which had a couch, chair, coffee table, end
table television set, stereo and musical equipment. Detective Sue observed the
front door and main entrance was made of wood with a hole in the door where the
door knob and lock would normally be located. Detective Sue saw no secure way
in which to lock the front door.

Detective Sue observed two hunting type knives with approximate five to six inch
blades stuck in the top corners of a thick heavy black blanket stabbed into the
stucco on the north wall over the front living room window. Detective Sue believes
that a child of any strength could have easily tugged on the blanket which hung
behind the couch, causing one or both knives to fall. There was a pile of what
appeared to be dirty laundry in the southwest corner of the living room, along with a
vacuum cleaner lying in the center of the living room floor with the cord
outstretched.

Immediately east of the living room was the master bedroom consisting of a double
bed sitting high off the ground, approximately three dressers, miscellaneous junk
and a TV with a VCR.

Also located in the room were items and chemicals used in the clandestine
manufacturing of methamphetamine. On the floor of the bedroom near the
doorway leading from the living room, on the west wall and near the closet, was a
can of Red Devil Lye. Next to that was an open cardboard box approximately
twelve inches high containing a round electrical heating device, numerous pieces of
black tubing into bottles, one of which had an unknown liquid with an attached tube
in top of the bottle, known as an HCL generator. A round bottom single neck flask
was also found wrapped in cloth in the box. Near the foot of the bed their was a
red plastic gallon container of suspected muriatic acid. On the dresser was
a Snapple bottle containing an unknown chemical. Found in the drawer of another
dresser was a used glass smoking pipe and approximately one-tenth of a gram of
methamphetamine which tested positive for methamphetamine. There was empty
glassware with residue and used plastic tubing.

There were two butcher or hunting type knives stuck point first into the north wall of
the master bedroom. These two knives stuck in the wall had no purpose and could
of been easily reached by one of the children if they were standing on the bed. A
partially empty can labeled Acetone was on top of a dresser next to the TV in the
master bedroom. Clothes were strewn about and piled all over the floor in and
around the chemicals and associated lab items.

Based on Detective Sue’s training and experience, Detective Sue knows that the
items described are of a chemical or lab nature commonly used in or associated
with the clandestine manufacturing of methamphetamine. Detective Sue believes
that the items listed herein are extremely dangerous to the health of all of the
children residing in the residence. Three of the chemicals found accessible to the
children were Red Devil Lye, Muriatic Acid and Acetone. In addition, unknown
chemicals were found. Red Devil Lye is extremely dangerous and is labeled with a
“Cross Bones” poison insignia. Red Devil Lye can be fatal if swallowed and is
extremely corrosive, causing severe burns to eyes and skin. If Red Devil Lye
comes in contact with the eye, it can cause blindness. Among other warnings
posted on the Red Devil Lye can label reads “store on high shelf or in locked
cabinet”, “out of reach of children”. Detective Sue knows that Red Devil Lye is a
common household product that is probably found in most homes in America,
however Detective Sue also believes that Red Devil Lye and similar household
products should be stored in appropriate locked or secured cupboards and/or
storage areas, out of reach of small children and are certainly not kept on a
bedroom floor among clothing in a walkway that is accessible to children. Acetone
is also extremely dangerous. It is a volatile flammable liquid that can cause death if
ingested and was also found in a common walkway accessible to children.

The red gallon plastic jug also on the bedroom floor, suspected of containing
muriatic acid, is also a strong corrosive irritating acid that emits a pungent
poisonous gas that fumes in moist air. Muriatic acid can cause severe burning to
skin and eyes, as well as pulmonary edema if inhaled into the lungs. In addition it
causes cancer, birth defects and other harm to reproductive organs.

The accessibility to these chemicals was rather alarming since the chemicals are
either explosive, flammable, or poisonous, or all three. It should be noted that the
bedroom described herein does not have a lock on the door and is one of two ways
that the children walk thru to use the restroom which is adjacent to the south side of
the master bedroom. It should also be noted that one of the children told CPS
Worker Kim that to wake her mother, she entered the bedroom when officers
arrived.

Walking to the bedroom south of the master bedroom, Detective Sue observed
three men’s disposable razor blades for shaving lying in the sink and one on top of
the sink, which could have easily been picked up by the children, causing them to
cut themselves or someone else. Compared to the rest of the house the bathroom
was the cleanest, with no dirty laundry observed.

In the adjacent children’s bedroom, south of the bathroom, were bunkbeds on the
south wall and a single small bed on the west wall. There was a very thin blanket
covering the springs of the small bed with no sheets, covers, or pillows. The
mattresses on the bunkbeds appeared to be partially covered with dirty torn
blankets. Dirty clothes were strewn about the floor.

From there, exit west into the kitchen which for the most part had bare floors. The
first concern was the refrigerator with what appeared to be a plate of grated
cheese, a plate of cooked potatoes, a bowl of chili and a large pan with a small
amount of chili on the bottom. The described food items were all uncovered and
appeared to have been left that way approximately one week. The food items
smelled and were hard and crusty. Only a partial gallon of milk appeared eatable.
In an open cupboard over the counter on the west wall of the kitchen with no
cupboard door, was a small one-quarter full bottle of a red liquid labeled iodine.
There was also a box of rock salt. Detective Sue knows from training and
experience that iodine and rock salt are commonly used by manufacturers of
methamphetamine to make homemade hydriodic acid. Next to the iodine was a
small jar containing suspected mercury. It is unknown what mercury is used for in
the manufacturing process, but it is known to be a poisonous metallic element used
in scientific procedures. The items described as found in the cupboard were
located next to common household foods such as a box of Bisquick mix and a bag
of popcorn.

Had these children been hungry, anyone of them could easily climb up on this
counter and come in contact with the dangerous items described.

Immediately off the south end of the kitchen was a back porch full of piles of
clothing, tools, bicycle parts and an inoperable washer. It was impossible to exit
the house thru the back door of the residence due to the items described filling the
back porch with no walkway through to the back door.

On the east side of the back porch was another children s bedroom with bunkbeds.
The bunkbeds had dirty mattresses with no sheets or blankets. Clothes were also
piled high on the floor in the room.

CPS Worker Kim advised that eight year old Sharde said her mother, Linda had
been taken all of the children to the soup kitchen at the Community Action Agency
for lunch on a daily basis, telling them they had to save the food at home. It should
be noted that Linda receives Public Assistance benefits in the amount of $824.00
cash and $297.00 food stamps. Sharde told CPS Worker Kim that she had not
gone to school in over a week because she had head lice.

CPS Worker Kim told Detective Sue that three year old Joshua was born positive
with methamphetamine in his system. CPS Worker Kim also said that after
Joshua s birth, medical experts discovered that Joshua had been born with a brain
lesion which doctors attribute to the use of methamphetamine by the mother, Linda
between her third and fourth month of pregnancy while Joshua was still in the
womb. The brain lesion also contributed to Cerebral Palsy which Joshua has been
inflicted with since birth.

Detective Sue believes the children residing in this residence have been at great
risk of being harmed or killed. Their health and lives have been negligently
endangered by both Clyde and Linda.

It is requested that Child Endangerment charges, 273a P.C., a felony, be filed


against Clyde and Linda.
____________________
Det. Sue
MICHAEL L. RAMSEY
BUTTE COUNTY DISTRICT ATTORNEY
COUNTY OF BUTTE
25 County Center Drive
Oroville, CA 95965
(530) 538-7411

PROSECUTION OF CHILD ENDANGERMENT: PENAL CODE 273a

I. OVERVIEW

II. WHAT CONSTITUTES PC 273a

III. DEFINITION OF TERMS

IV. SENTENCING CONSIDERATIONS

V. APPLICABLE JURY INSTRUCTIONS

VI. ALTERNATIVE CHARGING

VII. DIFFERENCES BETWEEN PC 273a AND HS 11379.7(a)(b)

VIII. EVIDENCE GATHERING

IX. USE OF EXPERTS

X. CONCLUSION
MICHAEL L. RAMSEY
BUTTE COUNTY DISTRICT ATTORNEY
COUNTY OF BUTTE
25 County Center Drive
Oroville, CA 95965
(530) 538-7411

PROSECUTION OF CHILD ENDANGERMENT: PENAL CODE 273a

I. OVERVIEW

Often, the prevailing mind set in a child endangerment case looks for a
showing of actual injury or a near death trauma. By reviewing the code section
itself, the decisional authorities and the jury instructions, it is clear that Penal Code
section 273a (PC 273a) has much broader application. This breadth was
confirmed by the California Supreme Court in People v Smith (1984) 35 Cal.3d
798, 806. The Smith court noted, “We recognize that a violation of its terms can
occur in a wide variety of situations: the definition broadly includes both active and
passive conduct…”
The broad application of PC 273a is a necessary yet underutilized tool to
combat the crimes committed daily against children by people in the drug trade.
Notably, the section does not require a relationship to the child who is at risk. Also,
the section does not require actual harm to result. Additionally, the potential harm
can be mental suffering rather than physical suffering. However, in the context of
criminal negligence resulting in child endangerment the court in People v. Lee
(1991) 234 Cal.App.3d 1214, held that there are two requirements that must be
present for any 273a prosecution: willful conduct, and committed under situations
likely to produce great bodily harm or death. Absent either of these elements, there
can be no violation of the statute. (Citing People v. Smith (1984) 35 Cal.3d at p.
806.)
The broad scope of PC 273a makes many different types of child
endangerment prosecutable. It is the potential for great bodily injury or death that
guides the degree of the crime. To see the range available, delineation of the
alternatives is helpful.
II. WHAT CONSTITUTES PC 273a:

A. Penal Code section 273a(a):

(a) 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.
(Wobbler.)

This subsection (PC 273a(a)) breaks down into two categories. You can
have these variations:
Any person who, under circumstances or conditions likely to produce great
bodily harm or death

I. (any child category)

willfully causes or permits or inflicts


unjustifiable physical pain;

willfully causes or permits or inflicts


unjustifiable mental suffering

II. (care or custody category)


willfully causes or permits
the person or health of that child to be injured

willfully causes or permits


any child placed in a situation where his/her person or health is endangered
Category I:

This applies to any person. There is no requirement of care or custody. A


visitor who willfully permits mental suffering on a child under circumstances likely to
produce great bodily harm would fall within this section.

Category II:

This applies to people with the “care or custody” of any child. Although it
appears that likely great bodily injury need not be shown when prosecuting
someone who has the custody or care of a child, courts have held, and the jury
instructions require, a showing of circumstances likely to result in great bodily
injury for any 273a(a) prosecution. It appears then that if PC 273(a)a were elected
as a misdemeanor prosecution, circumstances of potential great bodily injury would
be a required showing. As such, a misdemeanor prosecution might be more
effective under PC 273a(b), unless you are facing a statute of limitations problem.
(See People v. Mincey (1992) 2 Cal.4 408, 452-454, amendment during trial to a
misdemeanor barred conviction where act occurred more than one year prior.)
PC 273a(a) looks toward the worst degree of conduct or where potential
harm is the greatest. PC 273a(b) provides for prosecution where the potential for
great bodily injury or death is not present. Other than the distinction of degree, PC
273a(b) is the same as PC 273a(a).

B. Penal Code section 273a(b):

(b) 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.

Courts have been instructive in applying PC 273a to various scenarios and


delineating facts which constitute the offense. Although the cases generally have
not dealt directly with drug endangered children, (in the sense of children living in
methamphetamine labs or with parents stashing their drugs in children s clothing or
baby bottles), the holdings and principles are just as applicable. The case of
People v. Odom (1991) 226 Cal.App.3d 1028, is an important case in the area of
PC 273a(a) prosecutions. In this case, there was HS 11383 evidence, unsanitary
conditions and exposed dangers and weapons. The case, albeit brief, succinctly
relies on child endangerment cases from other context to find child endangerment
in Odom.
Clearly, the statute and the decisional law are broad enough to apply to types
of endangerment which the legislature or the courts have not yet imagined or
encountered. The goal is to use the breadth of the statute to hold accountable
conduct that is truly felonious in cases where no actual physical injury has occurred
or is readily apparent. As such, you are looking for the minimum level of felonious
conduct. The area of prosecution that is available but underutilized to protect drug
endangered children is child endangerment prosecution based on criminal
negligence as delineated in PC 273a(a). Given the options available, there are two
categories of delineating the lowest levels of conduct. They are demonstrated
below.

I. Any person who willfully permits any child to unjustifiably endure mental
suffering under circumstances likely to produce great bodily injury;

II. Any person with the care or custody of any child who willfully permits
that child to be placed in a situation where his/her person or health is
endangered under circumstances likely to produce great bodily injury.

This is the minimum level of conduct prosecutable as a felony under PC


273a(a).
III. DEFINITION OF TERMS:

“Willfully”: This term is applied as in any other criminal prosecution. There is no


requirement of an intent to injure. A purpose or willingness to commit or omit the
act. (People v. Pointer (1984) 151 Cal.App.3d 1128. See CALJIC 1.20)

“Permits”: Felony child abuse includes both active and passive conduct. Child
abuse by extreme neglect. (People v. Odom (1991) 226 Cal.App.3d 1028.)

“Great Bodily Injury”: Is defined in CALJIC instruction 9.02 as “Great bodily injury
refers to significant or substantial bodily injury or damage; it does not refer to trivial
or insignificant injury or moderate harm.” (CALJIC 17.20 and 17.20.1 use similar
language.) However, according to People v. Kimbrel (1981) 120 Cal.App.3d 869,
872, the term !great bodily injury’ is one commonly understandable to jurors and it
is not reversible error to fail to instruct sua spontae on the meaning. The term is
also defined in PC 12022.7(e) as “a significant or substantial physical injury.”
Health and Safety code section 11379.7 relies on the PC 12022.7(e) definition.
(Great bodily injury is a question for the trier of fact. People v. Ramirez (1997) 54
Cal.App.4 888, 902-903.)

“Unjustifiable”: It is the antonym of “justifiable” rather than “just”. The term means
conduct that is not legally defensible or is without a legal excuse. (People v.
Curtiss (1931) 116 Cal.App. Supp. 771.) No requirement of subjective knowledge
by the defendant that they were not helping the child. (People v. Rippberger (1991)
231 Cal.App.3d 1667.)

“Endangering Life or Health of Children”: Filthy conditions sufficed from dirt, debris,
old food, odor of defecation, cockroaches and encrustation on the child (People v.
Harris (1966) 239 Cal.App.2d 393); deprivation of medical, emotional and physical
care while confined in a closet for six months resulting in developmental delay and
growth retardation. (People v. Harris (1980) 111 Cal.App.3d 888.) See People v.
Odom (1991) 226 Cal.App.3d 1028 for PC 273a prosecution stemming from HS
11383 conditions.

“Criminal negligence”: PC 273a is a crime of criminal negligence and does not


require specific intent. (People v. Rippberger (1991) 231 Cal.App.3d 1667.) The
definition of criminal negligence is found in the jury instructions (CALJIC 3.36) but
has also been defined by the courts. As applied to Pen. Code,
273a (child
endangerment), 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.
Parents sometimes make mistakes that are detrimental to their children's health or
that injure their children, but such parents will be not charged with and convicted of
a violation of Pen. Code,
273a, unless they are criminally negligent. (People v
Deskin (1992) 10 Cal.App.4th 1397, People v. Pointer (1984) 151 Cal.App.3d
1128.) However, mere inattention is not sufficient. (People v. Peabody (1975) 46
Cal.App.3d 43.)

IV. SENTENCING CONSIDERATIONS:

PC 273a has conditions for sentencing built in. Although a wobbler, 273a(a)
has an upper term of six years. With 273a(b) classified as a misdemeanor, there
seems little need to charge a 273a(a) as a misdemeanor if you can show permitted
mental suffering under circumstances likely to produce great bodily injury.
At sentencing, keep in mind the provisions listed below. 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.

(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.

A possible alternative request at sentencing on probation, when the


conviction is drug related endangerment, is a narcotics treatment program or daily
mandatory narcotics anonymous meetings and parenting courses in lieu of a child
abuse programs. Certainly a “residence exclusion” order would be appropriate.

V. APPLICABLE JURY INSTRUCTIONS CALJIC:

1.20-Willfully
2.20.1-Testimony of Child 10 Years or Younger
2.80-Expert Testimony
2.82-Hypothetical By Experts
2.83-Resolution of Conflicting Experts
3.36-Criminal Negligence
9.02-Great Bodily Injury Definition
9.37-Felony Child Abuse/Neglect/Endangerment
16.170-Misdemeanor Child Abuse/Neglect/Endangerment

VI. ALTERNATIVE CHARGING:

Recently, an enhancement was added to the Health and Safety Code


providing for an additional two or five years in state prison when certain violations
occur in the presence of a child under the age of 16 years.
A. Health and Safety Code section 11379.7:
Enhanced punishment for certain offenses causing injury to child under 16 or
occurring where child is present

(a) Except as provided in subdivision (b), any person convicted of a violation of


subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to violate
subdivision (a) of Section 11379.6 or Section 11383, 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) Any person convicted of a violation of subdivision (a) of Section 11379.6 or


Section 11383, or of an attempt to violate subdivision (a) of Section 11379.6 or
Section 11383, 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.

B. BREAKDOWN OF THE ENHANCEMENT:

HS 11379.7(a):

-11379.6 or 11383 or attempts involving


-methamphetamine or phencyclidine
-in a “structure” (defined in subsection (c))
-and any child under 16 years is in the structure during the crime
-receives additional 2 years state prison

HS 11379.7(b):

-11379.6 or 11383 or attempts involving


-methamphetamine or phencyclidine
-where the crime causes any child
-under 16 years of age
-to suffer great bodily injury
-receives an additional 5 years state prison
HS 11379.7(a) does not require causation of any injury but the child must be
in the structure when the crime occurs. HS 11379.7(b) does not require the child to
be in the structure but an injury must occur.

VII. DIFFERENCES BETWEEN PC 273a AND HS 11379.7(a)(b):

PC 273a: HS 11379.7(a)(b)
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)
or
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 PC 17(b)(5) motion with 3, 5, 7 or 2, 4, 6, felony
sentence)
VIII. EVIDENCE GATHERING:

When there is a video tape of a child drinking from an HCL generator made
out of a soda bottle kept on the counter, the peripheral evidence efforts aren’t as
necessary because the harmful act is so apparent. However, if the goal is to
prosecute a drug related PC 273a as a felony then the question becomes what is
the minimal amount of conduct that still classifies as a felony. Of course, cases
prosecuted at that level require additional efforts in evidence collection.
Listed below are suggestions of evidence collection or investigation that
might help strengthen a case or at least 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 expert who needs to offer an opinion on likely great
bodily injury.

SUGGESTIONS:

-Photographs: The outside of the residence, the yard, every room in the house and
the children. If the child can be photographed safely in a room (for scale), this is
helpful. Also include any dangerous conditions including the dirt and debris.
Please take note of available food or 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 photographs 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 requested their assistance.

-Measurements: How tall are the kids relative to the dangers. If the drugs are in a
dresser, how tall is the 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, etc.

-Weapons: Note the location of any guns or weapons, availability, loaded, etc.

-Soil Samples: If the lab is unattached and the children play in the surrounding
area, a sample of the dirt should be taken for testing of hazardous 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 as
soon as possible.

IX. USE OF EXPERTS:

In many cases, depending on the facts, there will need to be an expert to


testify to the likelihood of great bodily injury. The type of case will dictate the type
of expert needed. If the risk to the child is consumption or contamination of drugs
or chemicals then a physician or toxicologist could be called. Obviously, the
likelihood for great bodily injury will be greater with 1 gram of methamphetamine
consumed by a three year old than an adult. The likelihood for great bodily injury
will be greater where toxic chemicals are stored in old food containers with the
other household food and the child cannot differentiate. The likelihood of great
bodily injury will be greater for a child than an adult where the child s lungs are
younger and still developing.
If the danger is from the operation of a methamphetamine lab, it might be
prudent to call your lab investigator to testify to the possibility of fire, explosions,
vapors or toxic waste. Even with precautions, an explosion is likely. A child would
suffer injury easier than an adult and from surprise, inexperience and fear would be
less able to retreat safely.
Dr. Robert Ferguson (Internal and Occupational Medicine and Toxicology) at
the U.C. Davis Medical Center in Sacramento is the primary doctor for the
California Department of Justice Clandestine Laboratory Program. Dr. Ferguson
reviews all cases of chemical exposure by State personnel. Dr. Ferguson can be
reached at (916) 752-2330, Monday through Friday 8:00 a.m. to 5:00 p.m. (Pager
number 916-762-6372.) Dr. Ferguson has recommended contacting the U.C.
Davis Poison Center at 1-800-342-9293 for acute exposure cases.
It is necessary to examine the facts of the case, determine the danger and
likelihood of great bodily injury and then pin down your expert. The need for the
expert increases as you walk closer to the minimal conduct line. The danger and
likelihood of injury in an exploding lab is rather obvious. However, the jury needs
education when the child’s clothing has been used as a hiding place for the finished
product. Moral outrage is not enough. The education must come from an expert.

X. CONCLUSION:

Obviously, the facts with which you are faced will guide much of your
charging choice. However, it is important to recall how the jury instructions appear
to require great bodily injury despite the language of the code. Further, the
differences between PC 273a(a) and (b) and HS 11379.7(a) and (b) are
substantial. Those differences make available prosecutions for nearly every type of
conduct that endangers children by exposure to drugs and the related hazards.