Filed 1/6/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE


 KEVIN BOM et al.,                     B292788, B292846,
                                       B292914, B292944
         Petitioners,
                                       (Los Angeles County
         v.                            Super. Ct. No. BA445260)

 SUPERIOR COURT OF
 LOS ANGELES COUNTY,

         Respondent;

 THE PEOPLE,

         Real Party in Interest.


      Original proceedings; petitions for writ of prohibitions.
George G. Lomeli, Judge. Writs granted.
      The Kuyumjian Firm and Hagop Kuyumjian for Petitioner
Kevin Bom.
      Shelly Albert for Petitioner Patricia Clement.
      Joseph A. Gutierrez for Petitioner Gregory Merritt.
      Filer Palmer and Lance Filer for Petitioner Stefanie
Rodriguez.
      Jackie Lacey, District Attorney, Phyllis Asayama, Deputy
District Attorney, and Kenneth Von Helmolt, Deputy District
Attorney for Real Party in Interest The People.
     No appearance for Respondent Superior Court of
Los Angeles County.
                    ____________________

       Petitioners Kevin Bom, Stefanie Rodriguez, Gregory
Merritt, and Patricia Clement were social workers with the
Los Angeles County Department of Children and Family Services
(DCFS). In 2012 and 2013, petitioners provided emergency
and family maintenance services to seven-year-old Gabriel F.
(Gabriel), and members of his family. Approximately six weeks
after DCFS closed its case, Gabriel died as a result of child
neglect and severe head trauma inflicted by his mother Pearl F.
(Pearl) and her boyfriend Isauro A. (Tony).
       The People charged petitioners with felony child abuse
(Pen. Code, § 273a, subd. (a)) and falsifying public records
(Gov. Code, § 6200). At a preliminary hearing, the magistrate
held them to answer the charges. After the People alleged the
same charges by information, the petitioners moved under Penal
Code section 995 to dismiss the information. The trial court
denied the motions, and petitioners timely filed petitions for a
writ of prohibition in this court. (See Pen. Code, § 999a.) We
stayed proceedings in the trial court, issued an order to show
cause, and consolidated the petitions for purposes of argument
and this opinion.
       Because the allegations against petitioners under Penal
Code section 273a, subdivision (a) are based on their alleged
nonfeasance, the People would be required to prove that the
petitioners either had the duty and ability to control Gabriel’s
abusers or had custody or control of Gabriel. We conclude
that the petitioners never had the requisite duty to control the
abusers and did not have care or custody of Gabriel for purposes
of Penal Code section 273a, subdivision (a). We further conclude



                                  2
that the petitioners were not officers within the meaning of
Government Code section 6200. There is, therefore, no probable
cause to hold them on charges of violating those laws and the
trial court should have granted the motions to dismiss. We
therefore grant the petitions.

                    FACTUAL SUMMARY
        Gabriel was born to Pearl in February 2005. From late
2005 until October 2012, Gabriel lived with Pearl’s parents. In
October 2012, he began living with Pearl, Pearl’s boyfriend Tony,
and Pearl’s two other children, E.F. (age 11 years) and V.F. (age
9 years). Gabriel began attending Summerwind Elementary
School that same month.
        On October 30, 2012, Gabriel told his teacher, Jennifer
Garcia (Garcia), that his mother had hit him on his “bottom” with
a belt buckle, causing him to bleed. Garcia noticed a bruise about
the size of a half-dollar under Gabriel’s left eye and another
bruise about the same size on the top of his hand. She called
the child protection hotline of DCFS to report potential abuse.
Garcia told the hotline screener about the bruises she observed
and what Gabriel had told her about being hit by the belt buckle.
She said that Gabriel was worried that his mother would hit him
because he did not understand his homework. Garcia also told
the screener that Gabriel had once pretended to “snort something
off of his desk,” suggesting that Gabriel was being exposed to
illicit drug use.
        The DCFS hotline screener prepared referral documents to
initiate an investigation of Garcia’s allegations. The documents
included the information provided by Garcia, as well as reports
concerning Pearl from the statewide electronic child welfare
system/case management system known as CWS/CMS. These
records showed that Pearl had a history of illicit drug use and



                                   3
that the family had been the subject of four prior referrals to
DCFS between 2003 and 2011. DCFS determined that each prior
referral was “[u]nfounded.”
       DCFS assigned Gabriel’s case to petitioner Rodriguez,
a social worker in the emergency response unit in DCFS’s
Palmdale office. Petitioner Bom was Rodriguez’s supervisor.
       On October 31, 2012, Rodriguez called Garcia, and Garcia
repeated to Rodriguez the information she had given the hotline
screener. Rodriguez gave Garcia a telephone number that Garcia
could use to contact Rodriguez directly.
       Rodriguez contacted Pearl by phone and arranged to
visit the family home on November 1, 2012. During that visit,
Rodriquez observed that the three-bedroom apartment had
functioning utilities and adequate food. She saw no drug
paraphernalia in the home. Pearl told Rodriquez she had been
a gang member and had a history of cocaine abuse and alcohol
abuse, but had been clean for over five years. She said she takes
a prescription narcotic for arthritis pain and agreed to drug test.
Pearl said that Gabriel’s father was in prison and would not be
released for six or seven years. Pearl told Rodriquez that she
suffered from anxiety and depression and previously received
mental health services.
       According to Pearl, Gabriel said that his report to Garcia
was motivated by his desire to live with his grandmother again.
Pearl told Rodriguez that Gabriel claims to hear “little voices”
and has aggression issues. She believed that Gabriel may have
mimicked snorting cocaine in his classroom because he had
watched the film “Blow.”
       Pearl admitted spanking Gabriel with a belt once, and said
she did so because he had been lying and stealing. Rodriguez
told Pearl that spanking a child with an object was inappropriate.




                                   4
       Rodriguez spoke with Pearl’s children and each said that
they felt safe in the home and denied any abuse, drug use, or
domestic violence in the home. Gabriel denied that Pearl had
spanked him with a belt, and his siblings said they had never
seen Pearl spank Gabriel with any objects. V.F. reported that
her mother spanked her once with a belt. Gabriel said the bruise
on his face was caused by bumping the corner of the bathroom
door when his mother closed it without realizing he was in the
way, and that a scratch on his hand was caused by falling down.
He said that his mother helps him with his homework and denied
that she makes him stay up all night to finish it. What he told
his teacher, he explained, was “a joke.”
       Rodriguez observed a bruise “approximately the size of a
quarter,” on Gabriel’s buttocks and marked the location of the
bruise on a body chart in Gabriel’s case file.
       On November 2, 2012, Pearl and Tony submitted to drug
tests, which came back negative.
       On November 20, 2012, Rodriguez made an unannounced
visit to the family home. Rodriguez reported she did not see any
marks or bruises on the children indicating abuse or neglect.
Pearl told Rodriguez that Gabriel had been behaving better since
Tony asked a deputy sheriff to let Gabriel sit in the back seat
of his patrol car to see what it felt like to be a criminal.
       On November 27, 2012, Garcia noticed that chunks of
Gabriel’s hair were missing, there were four or five bloody scabs
on his scalp, a cut on his ear, and he had a bruise the size of a
half-dollar under one eye. Gabriel appeared to be sad and
embarrassed.
       Two days later, Garcia telephoned Rodriguez and reported
that Gabriel had a “busted lip” and a “weird” haircut, and had
told Garcia that his mother punched him in the mouth. Neither




                                   5
Garcia nor Rodriquez reported this suspected abuse to the DCFS
hotline.
       Later that day, Rodriguez visited the family home and
observed that Gabriel’s hair was cut in a “mohawk” style with
chucks of hair missing, and his lower lip appeared to have
a scabbing blister. Gabriel told Rodriguez that he bit his lip
and cut his own hair in a style to look like a dragon. He said
his mother had not spanked or hit him anywhere on his body
recently and denied that she punched him in the mouth.
Rodriguez did not make any marks on a body chart.
       Rodriguez spoke with Gabriel’s siblings, who denied any
physical abuse. V.F. told Rodriguez that Gabriel injured his lip
by falling on the front steps. Rodriquez also spoke with Gabriel’s
maternal aunt, who was visiting. The aunt reported that when
Gabriel was younger, he would smear feces on the wall, get in
fights, cut little girls’ hair, and “bite the family dog on his private
area, and the cats on their ears and paws.” Pearl told Rodriquez
that she had spanked Gabriel twice recently because he
misbehaved, but did not use a belt or other object. Pearl said she
was interested in services for Gabriel to address his behavioral
issues.
       There were no reports or incidents concerning Gabriel
during the next four weeks, and, so far as our record reveals,
no communication between Pearl or Gabriel and any of the
petitioners during that time.
       On December 27, 2012, Rodriguez presented the case
to a social worker in DCFS’s family preservation unit for a
possible transfer, or to “be promoted” to that unit. The family
preservation unit provides family maintenance services, such as
counseling, on a voluntary basis. It is an alternative to juvenile
court dependency proceedings.




                                      6
       In connection with the promotion of the case to the family
preservation unit, Rodriguez completed and signed a document
titled “Investigation Narrative (Investigation/Assessment and
Referral Disposition Findings),” which provided a summary of
the referral, contacts, and family history concerning Gabriel’s
case. (Boldface and underlining omitted.) The investigation
narrative concluded that the allegations of physical abuse were
“inconclusive,” but added an allegation of “general neglect” based
on inappropriate corporal discipline. (Boldface and underlining
omitted.) Based on DCFS’s risk assessment methods, the family
was placed in a “very high” risk category. The document was
prepared on or about December 28, 2012, and signed by Bom
and Rodriguez on January 30, 2013.
       Rodriguez also prepared a case plan and family
assessment. The case plan stated that Pearl’s discipline had been
“rigid and punitive” “to the detriment of the children,” and that
her “inappropriate corporal discipline” substantiated “allegations
of general neglect.” The case plan reiterated the statement in
the investigation narrative that the “allegations of physical abuse
are inconclusive.” The plan further stated that the children were
“physically healthy,” and that Pearl was cooperative, motivated
to solve the problems, willing to accept services, and willing to
change. The plan included counseling for Pearl and the children,
physical exams for the children as needed, and contact with a
social worker twice each month.
       On January 16, 2013, Rodriguez visited the family home
and saw the children, who reported they were doing well.
Rodriguez did not see any bruises or marks indicative of abuse or
neglect and reported that they are “visibly healthy.” Nor did she
see any “endangering elements [in the home] that would be cause
for immediate concern.” Pearl told Rodriguez that “things had




                                   7
been going well” and there were no recent behavioral issues with
Gabriel.
       On January 29, 2013, Garcia called Rodriguez and reported
that Gabriel had returned to school after a week’s absence with
swelling under one eye and little bruises on his face. Garcia said
that when Gabriel was among other children, he said he had
fallen off his bed while playing with his brother. When Garcia
spoke with Gabriel alone, however, Gabriel told her that his
mother shot him in the face with a BB gun while she made him
do exercises.
       Rodriguez spoke by telephone with Pearl, who said
that Gabriel had fallen off the top bunk bed and suffered some
scratches and bruises. Rodriguez visited the family home that
afternoon and observed that Gabriel had small bruises and slight
swelling on his face. Gabriel told Rodriguez that he had been
playing tag with his brother E.F. on the top bunk in the dark
when he pulled away and fell face first onto bicycles that were
stored next to the bed. Gabriel claimed he gave Garcia the same
account and denied telling her that his mother shot him with a
BB gun. Gabriel’s siblings told Rodriguez that Gabriel had fallen
off the bunk bed and onto the bicycles. They also denied that
someone had shot anyone with a BB gun.
       Pearl told Rodriguez she did not know why Gabriel would
say she shot him with a BB gun. Pearl also said that Gabriel had
recently approached her, said he was angry, and began hitting
himself in the face. Rodriguez discussed the family preservation
case plan with Pearl, who then signed it. Rodriguez did not
report the new allegations regarding the BB gun to the DCFS
hotline, and did not update the body chart for Gabriel to indicate
the bruising and swelling on his face.
       On January 30, 2013, Rodriquez and Bom signed a case
transfer check list, effectively transferring the case to the family



                                    8
preservation unit. The case was transferred to petitioner Merritt,
a supervisor social worker in the family preservation unit, who
assigned the case to petitioner Clement, a social worker. Carmen
LeNorgant from the Children’s Center of Antelope Valley was
assigned to provide in-home counseling services.
       LeNorgant visited the family home approximately weekly
between and including February 8, 2012 and March 6, 2013.
Clement accompanied LeNorgant during the February 13, 2013
visit, and completed a family risk assessment that scored the
family as having a “high” level risk of abuse—a level between
“moderate” and “very high.”
       LeNorgant found no safety issues for the children in the
home on each of her visits. On February 27, 2013, however,
Pearl showed LeNorgant a suicide note that Gabriel had written
stating, “I love you so much that I will kill my sowf” (sic) and
“I love you in till you diy” (sic). The note included a drawing
showing two characters upside down. LeNorgant reported
the matter to DCFS and the Los Angeles County Sheriff’s
Department. Sheriff’s deputies visited Gabriel’s home, but made
no arrests.
       During a visit with the family on March 1, 2013, Clement
discussed Gabriel’s suicide note with Pearl. Clement noted that
Gabriel is having “angry and confusing thoughts about his
mom and his grandparents,” and he “is working with this in
counseling.”
       On March 6, 2013, LeNorgant and Clement visited the
home and reported that the children appeared healthy and
observed no child safety risks in the home. Clement reported
that the children “attend school regularly,” a fact the People




                                   9
would later assert was false. 1 Clement assessed that Pearl
was “overwhelmed with her own emotional pain” and “feels
that having [family preservation] services is to[o] much for
her.” Clement concluded that Pearl is “unwilling to continue
counseling” and “is refusing services.” Clement recommended
that DCFS “close the case.”
       In connection with closing the case, Clement prepared a
safety assessment and risk assessment concerning Gabriel. The
safety assessment included the following statements, which the
People contend are false: Gabriel “has the cognitive, physical,
and emotional capacity to participate in safety interventions”;
Pearl “has the cognitive, physical, and emotional capacity to
participate in safety interventions”; Pearl has a “willingness to
recognize problems and threats placing [Gabriel] in imminent
danger”; Pearl has the “ability to access resources to provide
necessary safety interventions”; Pearl has “supportive
relationships with one or more persons who may be willing to
participate in safety planning” and is “willing and able to accept
their assistance”; there is “evidence of a healthy relationship
between [Pearl] and [Gabriel]”; and Pearl “is aware of and
committed to meeting the needs of [Gabriel].”
       Clement indicated in the risk assessment that Pearl did not
have mental health issues and that she has either demonstrated
new skills consistent with case plan objectives or is actively
engaged in services to gain such skills. The risk assessment
produced a risk score of six, which correlates to a risk level of
“high.” Under DCFS rules, a case with a high risk level cannot
be closed unless a supervisor exercises a “discretionary override.”


      1The People contend that this statement is false based on
evidence that Gabriel was absent from school 37 days out of the
121 days he was enrolled at Summerwind Elementary School.



                                   10
Merritt exercised that discretion and reduced the risk level to
“moderate,” thereby allowing the case to be closed. The reason
Merritt gave for the override was: “Mother’s providing [a]
safe nurturing home for her children. Mother’s boyfriend has
developed a caring parental relationship with the children and
the children are going to school and receiving counseling.”
      Barbara Dixon, a therapist intern, conducted therapy
sessions with Gabriel in March, April, and May 2013. During
a session on March 25, 2013, Gabriel and Pearl disclosed
to Dixon that Gabriel had been sexually abused by a relative
about three years earlier while he was living with his maternal
grandmother. Dixon reported the incident to the DCFS hotline,
which prompted a new referral concerning Gabriel. That referral
was assigned to social worker Keyana Hadley. According to
Hadley, Clement informed her that the new allegations were
being addressed in therapy, that there were no present concerns,
and that she was preparing to close the family preservation case.
It does not appear that Clement or the other petitioners had any
further involvement in that referral.
      On April 7, 2013, Merritt approved of the safety assessment
and of Clement’s recommendation to close the case.
      In early May 2013, about one month after DCFS closed its
case, Garcia telephoned Rodriguez and left voice messages
stating that Gabriel had returned to school after a long absence,
and he looked “horrible” with a “solid red eye,” skin peeling off his
forehead, scabs, and marks on his neck. Gabriel told people at
school that he was injured riding his bicycle. Rodriguez did not
respond to Garcia’s messages.
      On May 23, 2013, Pearl called 911 and reported that
Gabriel had fallen in the bath. Gabriel arrived in the emergency
room unresponsive. He had suffered open skull fractures,
multiple other fractures, a broken nose, missing teeth, burns,



                                    11
and cuts and bruises on his face and “throughout his body.” He
also had internal injuries, including a large liver laceration and
pulmonary contusions, and swollen lesions throughout his body
with embedded metal BB pellets. Medical interventions failed,
and Gabriel died the next day. The coroner, Dr. James Ribe,
testified that Gabriel had ligature marks on both ankles, marks
from being whipped with a cord, and puncture wounds, as well as
BB’s imbedded in Gabriel’s body. Some of his wounds may have
been “days to a few weeks” old and others “weeks to months” old.
Gabriel had numerous broken ribs, some of which had healed and
may have been at least three or four weeks old. Dr. Ribe opined
that Gabriel died of blunt force trauma to the head, exacerbated
by his weakened condition due to long term injuries,
malnutrition, and neglect.
       Pearl and Tony were convicted of Gabriel’s murder.

                          DISCUSSION
      A.    Standard of Review
       Upon a motion to dismiss pursuant to Penal Code
section 995, the superior court shall set aside an information
if the defendant has “been committed without reasonable or
probable cause.” (Pen. Code, § 995, subd. (a)(2)(B).) “ ‘ “Probable
cause is shown if a man of ordinary caution or prudence would be
led to believe and conscientiously entertain a strong suspicion of
the guilt of the accused.” ’ ” (Rideout v. Superior Court (1967)
67 Cal.2d 471, 474 (Rideout).)
       On review of an order denying a motion to dismiss, we
review the decision of the magistrate that held the defendants
to answer. (People v. Laiwa (1983) 34 Cal.3d 711, 718.) We
will not disturb the order “if there is some rational ground for
assuming the possibility that an offense has been committed
and the accused is guilty of it.” (Rideout, supra, 67 Cal.2d at



                                   12
p. 474.) We may not substitute our “judgment as to the weight
of the evidence for that of the magistrate, and, if there is some
evidence to support the information, [we] will not inquire into
its sufficiency. [Citations.] Every legitimate inference that
may be drawn from the evidence must be drawn in favor of the
information.” (Ibid.) To the extent the motion to dismiss rests
on undisputed facts or the interpretation of statutes, however,
our review is de novo. (People v. Gonzalez (2017) 2 Cal.5th
1138, 1141; People v. Watson (1981) 30 Cal.3d 290, 300; People v.
Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1529.)

      B.    Child Abuse Under Penal Code Section 273a,
            Subdivision (a)
       Penal Code section 273a, subdivision (a) provides: “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.”
       The statute proscribes “four branches,” or categories
of conduct. (People v. Sargent (1999) 19 Cal.4th 1206, 1215
(Sargent).) Each category includes the requirements that
the perpetrator’s conduct was “ ‘willful’ ” and that he or she
committed the crime “ ‘ “under circumstances or conditions likely
to produce great bodily harm or death.” ’ ” (Id. at p. 1216.) 2 The

      2One acts willfully in this context by acting with criminal
negligence. (People v. Valdez (2002) 27 Cal.4th 778, 788



                                   13
first two categories apply (1) to persons who cause or permit a
child to suffer and (2) to persons who inflict unjustifiable physical
pain or mental suffering on a child. (Sargent, supra, 19 Cal.4th
at p. 1216.) The third and fourth categories apply only to persons
who committed specified criminal acts or omissions while having
the “ ‘care or custody’ ” of the child victim. (Id. at p. 1227 (conc.
opn. of Mosk, J.); People v. Harris (1966) 239 Cal.App.2d 393,
398–399; CALJIC No. 9.37; CALCRIM No. 821; cf. People v.
Heitzman (1994) 9 Cal.4th 189, 197, 204 (Heitzman).)
       The People do not rely on the second category and, indeed,
there is no evidence that any petitioner inflicted any pain or
suffering on Gabriel. Nor do they contend that petitioners
“cause[d]” Gabriel to suffer within the meaning of the first
category. Our review, therefore, is limited to determining
whether the petitioners may be criminally liable under (1) the
first category—for willfully permitting a child to suffer—or
(2) either the third or fourth categories, which require that
the petitioners had “care or custody” of Gabriel when the abuse
occurred. We examine each in turn.

            1.    Liability under the first category of
                  Penal Code section 273a, subdivision (a)
                  for permitting a child to suffer
      According to the text of Penal Code section 273a,
subdivision (a), liability extends to “[a]ny person who, under
circumstances or conditions likely to produce great bodily harm


(Valdez).) Such “ ‘ “negligence must be aggravated, culpable,
gross, or reckless, that is, the conduct of the accused must be
such a departure from what would be the conduct of an ordinarily
prudent or careful [person] under the same circumstances as to
be incompatible with a proper regard for human life . . . or an
indifference to consequences.” ’ ” (Ibid.)



                                    14
or death, willfully . . . permits any child to suffer.” In Heitzman,
supra, 9 Cal.4th 189, our Supreme Court considered similar
language in Penal Code section 368, which defines crimes of elder
abuse. 3 Penal Code section 368 “makes it a felony for any person
to willfully permit the infliction of pain or suffering on an elder.”
(Heitzman, supra, 9 Cal.4th at p. 200.) The Supreme Court
rejected an interpretation of the statute that would impose a duty
on everyone “to prevent the infliction of pain and suffering abuse
of an elder,” because it would render the statutory language
unconstitutionally vague. (Id. at p. 209.) To avoid having to
declare the statute void for that reason, the court construed the
language as applying only to persons who (1) “stand in a special
relationship to the individual inflicting the abuse on the elder
such that the defendant is under an existing duty to supervise
and control that individual’s conduct,” and (2) have “the ability
to control [the abusive] conduct.” (Id. at pp. 212–213.) Under
this interpretation, criminal liability under the first category
for permitting an elder to suffer “is properly based not on the
relationship between the defendant and the [abused], but rather,
on that between the defendant and the abuser.” (Id. at p. 213.)
By limiting criminal liability in this way, the Supreme Court


      3  Section 368, subdivision (b)(1) makes it a crime for “[a]
person who knows or reasonably should know that a person is
an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or
inflicts thereon unjustifiable physical pain or mental suffering,
or having the care or custody of any elder or dependent adult,
willfully causes or permits the person or health of the elder or
dependent adult to be injured, or willfully causes or permits the
elder or dependent adult to be placed in a situation in which his
or her person or health is endangered.”



                                    15
acknowledged that “the class of potential offenders may indeed
be relatively small.” (Ibid.)
       In discussing the kind of special relationship that may give
rise to a duty to control an abuser, the Heitzman court cited to
Tarasoff v. Regents of University of California (1976) 17 Cal.3d
425 (Tarasoff), Megeff v. Doland (1981) 123 Cal.App.3d 251
(Megeff), and section 319 of the Restatement Second of Torts.
(Heitzman, supra, 9 Cal.4th at p. 212.) In Tarasoff, the court
held that a psychologist had a duty to act to prevent his patient
from harming another person when the patient had informed
the psychologist of his intent to kill the other person. (Tarasoff,
supra, 17 Cal.3d at pp. 430–431.) The Tarasoff court analogized
the duty of the psychologist to that of a doctor who is aware that
a patient’s condition makes the patient dangerous to others, and
that of a hospital, which “must exercise reasonable care to control
the behavior of a patient [who] may endanger other persons.”
(Id. at p. 436.)
       In Megeff, a hospitalized man was moved to the
psychiatric ward of a hospital because he had attacked an
intern and threatened a nurse. (Megeff, supra, 123 Cal.App.3d
at pp. 257–258.) The man’s wife, who allegedly knew that the
man had previously assaulted and beat innocent people, obtained
the man’s release from the hospital after “assuring hospital
authorities that [she] would assume full responsibility over
him and his conduct and would never leave him unattended.”
(Id. at p. 258.) The wife, however, allowed the man to “roam
the streets of Beverly Hills unattended,” where he attacked the
plaintiff. (Id. at pp. 255, 258.) The Court of Appeal indicated
that such allegations would be sufficient under Tarasoff to
establish a duty on the part of the wife to control the attacker.
(Id. at pp. 257–258.)




                                   16
       Lastly, the Heitzman court cited to the Restatement
Second of Torts for the point that “ ‘[o]ne who takes charge of a
third person whom he knows or should know to be likely to cause
bodily harm to others if not controlled’ ” has a duty to control the
third person to prevent such harm. (Heitzman, supra, 9 Cal.4th
at p. 212, quoting Rest.2d Torts, § 319.) Examples of those who
“take[ ] charge” of another for this purpose include the operator
of a “hospital for contagious diseases” and a “sanitarium for the
insane.” (Rest.2d Torts, § 319, com. a, illus. 1 & 2, pp. 129–130.)
       In People v. Flores (2016) 2 Cal.App.5th 855 (Flores),
the Court of Appeal applied Heitzman’s analysis to Penal
Code section 273a to “construe that portion of [Penal Code]
section 273a, subdivision (a) that imposes criminal penalties on
noncaretakers who ‘willfully permit[ ]’ the requisite injury to be
inflicted on a victim [a]s limited to those persons who had an
affirmative duty, under statutory or common law principles, to
exert control over the actor who caused or directly inflicted the
injury on the victim.” (Flores, supra, 2 Cal.App.5th at p. 877.)
We agree with Flores that the reasoning in Heitzman compels
this construction of the language—“[a]ny person who . . .
willfully . . . permits”—in the first category of Penal Code
section 273a. (See Sargent, supra, 19 Cal.4th at p. 1216, fn. 6
[“Section 368 was patterned on and is virtually identical to
section 273a. Cases interpreting one section are therefore
appropriately used to interpret the other.”].) The threshold
question arising under the first category of Penal Code
section 273a in this case, therefore, is whether the petitioners
had an affirmative duty to exert control over Pearl or Tony.
The People assert that the petitioners “arguably” had such a
duty. We disagree.
       Initially, we observe that the petitioners had no
relationship with Pearl or Tony comparable to the types of special



                                   17
relationships described in Heitzman that may “give rise to a
duty to prevent an individual from inflicting pain or suffering
on” another. (See Heitzman, supra, 9 Cal.4th at p. 212.) The
petitioners were not Pearl’s or Tony’s psychologists or physicians
(see ibid.; Tarasoff, supra, 17 Cal.3d at pp. 436–437); they never
assured anyone that they would assume responsibility for Pearl
or Tony (see Megeff, supra, 123 Cal.App.3d at p. 258); and they
never took “charge” of them within the meaning of the cited
Restatement provision. (See Rest.2d Torts, § 319.) 4 The People
do not refer us to any case that would support the existence of
the kind of special relationship between petitioners and Pearl
or Tony necessary to support the requisite duty to control them,
nor has our research found such a case. Indeed, there is
authority suggesting otherwise. (See DeShaney v. Winnebago
Cty. Soc. Servs. Dept. (1989) 489 U.S. 189, 201-202 [rejecting
claim for damages by an abused child against social workers
under 42 U.S.C. section 1983 because social workers did not have


      4  In 2010, the American Law Institute replaced section 319
of Restatement Second of Torts with Restatement Third of
Torts, section 41. (Rest.3d Torts, § 41, com. (a), pp. 64-65.) The
drafters expressly incorporated the Tarasoff holding, adding the
relationship of “a mental-health professional with patients” to the
list of special relationships that may give rise to a duty of care
to third persons to protect from risks posed by others. (Rest.3d
Torts, § 41, subd. (b)(4).) Although the drafters include “social
workers” among the “mental-health professionals” that may be
subject to such a duty, they limited the duty to social workers
“who have a relationship with a mental patient and provide
professional psychotherapeutic services to the patient.” (Rest.3d,
§ 41, com. (g), p. 71.) There is nothing in our record to suggest,
and the People do not contend, that Pearl or Tony were mental
patients or that petitioners provided them with professional
psychotherapeutic services.



                                   18
a special relationship giving rise to a duty of care to protect the
child from his abusive father; even though they “may have been
aware of the dangers” the child faced, the social workers “played
no part in their creation,” and they did nothing “to render [the
child] more vulnerable to them”]; Grijalva v. U.S. (M.D.Ga. 2003)
289 F.Supp.2d 1372, 1379 [social worker did not have a special
relationship with patient, who shot his wife, and therefore no
duty to protect patient’s wife].)
       The absence of a special relationship between social
workers and a child abuser that would give rise to a duty to
control the child abuser is consistent with the rule that police
officers ordinarily have no special relationship with individual
members of the public and, therefore, “have no legal duty to
control the conduct of others.” (Adams v. City of Fremont (1998)
68 Cal.App.4th 243, 277.) Although police officers “may” arrest
a suspect when there is probable cause to believe the suspect
has committed a felony (Pen. Code, § 836, subd. (a)), the
decision to make the arrest is a matter within the officer’s
discretion; he or she does not ordinarily owe a duty to anyone
to do so. (Michenfelder v. City of Torrance (1972) 28 Cal.App.3d
202, 206-207; Tomlinson v. Pierce (1960) 178 Cal.App.2d
112, 116; Chavira v. Chavez (C.D.Cal., Apr. 21, 2014,
No. SACV 13-00890 JVS) 2014 WL 12576819 at p. *6.) 5 To


      5 An exception to the general rule that police officers
may, but are not required to arrest a criminal suspect, applies
in domestic violence situations. A police officer is “require[d]”
to arrest “an offender, absent exigent circumstances, if there
is probable cause that a protective order . . . has been violated.”
(Pen. Code, § 13701, subd. (b); see also Pen. Code, § 836,
subd. (c)(1).) Peace officers are also required to arrest one
who has been charged with a crime. (Pen. Code, § 142, subd. (a).)
These situations are not relevant here.



                                   19
the extent a social worker could be viewed as having the ability
to control a suspected child abuser at all—such as by taking the
child into protective custody or initiating dependency
proceedings—that ability is similarly discretionary. (See Welf. &
Inst. Code, § 306, subd. (a) [social worker “may” take child into
temporary protective custody when exigent circumstances exist];
Jacqueline T. v. Alameda County Child Protective Services (2007)
155 Cal.App.4th 456, 466 [social workers’ actions relating to
investigations of child abuse, removal of child from parents, and
initiating dependency proceedings are discretionary]; Alicia T. v.
County of Los Angeles (1990) 222 Cal.App.3d 869, 881 [same].)
Thus, just as “[c]ourts have refused to find a special relationship
or impose liability based on the negligence by police personnel in
responding to requests for assistance, in conducting or failing to
conduct an investigation, in failing to warn of a potential danger
or in failing to provide sufficient protection where the police
have not induced reliance on a specific promise that they would
provide specific protection” (M.B. v. City of San Diego (1991)
233 Cal.App.3d 699, 705, fns. omitted), social workers likewise
have no such special relationship with the suspected wrongdoer
or duty to control them.
       The People do not cite to any statute or case law to support
an argument that petitioners had the duty to control Pearl or
Tony. The only authority they cite on this point is language in a
DCFS procedural guide that “[t]he interventions in the safety plan
are designed to control the risk factors posing a safety threat to
the child.” (Italics omitted.) Among possible “interventions” is the
removal of the child from the family home. The People argue that
this language authorized the petitioners to remove Gabriel from
his home and thereby restrict and control Pearl’s and Tony’s access
to Gabriel. By statute, any such removal is permitted only “if the
information [the social workers] possess at the time of seizure




                                    20
provides reasonable cause to believe that the child is in imminent
danger.” (M.L. v. Superior Court (2009) 172 Cal.App.4th 520, 527;
see Wallis v. Spencer (9th Cir. 2000) 202 F.3d 1126, 1138 [same];
see also In re Henry V. (2004) 119 Cal.App.4th 522, 525 [removing
children from parents under existing law is a “last resort”].) Even
if there were facts suggesting the petitioners in this case had such
information at the relevant time, they were merely permitted to
take such action; they were not required to do so. (Welf. & Inst.
Code, § 306, subd. (a) [social worker “may” take child into
protective custody].) Thus, neither the DCFS procedural guide
cited by the People nor the statutes upon which it is derived create
the necessary “existing duty” to take custody. (Heitzman, supra,
9 Cal.4th at p. 212.) Moreover, imposing criminal liability on a
social worker for making discretionary decisions, when the best
solution is not always obvious, would create an incentive for the
social worker to focus more on his or her own liability rather than
on the best interest of the child.
       In the absence of a legal duty to control Gabriel’s abusers,
petitioners cannot be held to answer for the crime of willfully
permitting a child to suffer under the first category of Penal Code
section 273a, subdivision (a). (See Heitzman, supra, 9 Cal.4th at
p. 215 [criminal charges must be dismissed in absence of evidence
tending to show that defendant had a legal duty to control the
conduct of the victim’s abusers].)

            2.    Care and custody under Penal Code
                  section 273a
      Under the third and fourth categories of Penal Code
section 273a, subdivision (a), the defendant must have committed
the alleged criminal acts or omissions while “having the care or
custody of any child.” Thus, in contrast with the first category of
crimes under the statute, which was focused on the relationship
between the defendant and the abuser, the third and fourth



                                   21
categories are focused on the relationship between the defendant
and the victim.
       The People do not contend that any of the petitioners ever
had legal or physical custody of Gabriel; indeed, it appears to be
undisputed that at all relevant times, Gabriel’s mother and/or
her live-in companion, Tony, held legal and/or physical custody
of Gabriel. For the petitioners to be criminally liable, therefore,
they must have had “the care” of Gabriel when they committed
the acts or omissions that allegedly “cause[d] or permit[ted]”
Gabriel “to be placed in a situation where his or her person or
health [was] endangered.” (Pen. Code, § 273a, subd. (a).)
       Our Supreme Court has not stated what it means to
have the care of a child for purposes of Penal Code section 273a,
although it has used the word “caretaker” as a synonym for the
phrase in the analogous elder abuse statute. (See Heitzman,
supra, 9 Cal.4th at pp. 197, 213 [discussing care or custody of an
elder for purposes of elder abuse under Penal Code section 368];
see also In re Ethan C. (2012) 54 Cal.4th 610, 620, fn. 5 [referring
to Penal Code section 273a as applying to “child’s caretaker’s or
custodian’s willful placement of child in situation dangerous to
child’s health or person”].)
       Courts of Appeal have used the terms “caretaker” and
“caregiver” interchangeably to refer to one who has the care
of a child for purposes of Penal Code section 273a (see, e.g.,
Flores, supra, 2 Cal.App.5th at pp. 880–882), and have stated
that having “ ‘care or custody’ [of a child does] not imply a
familial relationship but only a willingness to assume duties
correspondent to the role of a caregiver.” (People v. Cochran
(1998) 62 Cal.App.4th 826, 832 (Cochran); accord, People v.
Morales (2008) 168 Cal.App.4th 1075, 1083; People v. Perez
(2008) 164 Cal.App.4th 1462, 1472 (Perez); People v. Culuko
(2000) 78 Cal.App.4th 307, 335 (Culuko); People v. Toney (1999)



                                    22
76 Cal.App.4th 618, 621–622 (Toney).) That role, one court
held, need not be “evidenced by . . . an express agreement to
assume the duties of a caregiver” (Perez, supra, 164 Cal.App.4th
at p. 1476); evidence of a defendant’s “conduct and the
circumstances of the interaction between the defendant and
the child” may establish that the defendant “did undertake
caregiving responsibilities.” (Ibid.)
       Persons convicted under the care or custody prongs
of Penal Code section 273a are typically parents of the child
victims. (Heitzman, supra, 9 Cal.4th at p. 205, fn. 14; see, e.g.,
Valdez, supra, 27 Cal.4th at p. 781; Sargent, supra, 19 Cal.4th
at pp. 1210–1211.) Courts of Appeal have, however, upheld
convictions of persons who were not parents of the abused child
when they assumed a role as his or her caretaker or caregiver.
In Cochran, supra, 62 Cal.App.4th 826, for example, the
defendant invited the mother of the child and the child into
his residence and acted “as the child’s surrogate father in that
he watched and fed the baby, gave her baths and helped put
her down for naps.” (Id. at pp. 829, 833.) In Culuko, supra,
78 Cal.App.4th 307, the defendant lived with the mother of the
infant victim and the infant in one room, and there was evidence
that the defendant “took care of the baby” and “at times, . . .
was left alone with the baby.” (Id. at p. 335.) The defendant
also “bathed the baby, changed the baby, and gave the baby a
bottle at 2:30 a.m.,” shortly before the baby died. (Ibid.) “[M]ost
significantly, [there was evidence that] five days before [the baby]
died, [the defendant] said he was taking full responsibility for
caring for the baby so the baby would bond with him.” (Ibid.;
see also Toney, supra, 76 Cal.App.4th at p. 622 [defendant
married the mother of the six-year-old victim, invited both into
his home, and gave the child “a room of his own and allowed him
to use an area in the living room”]; People v. Malfavon (2002)



                                   23
102 Cal.App.4th 727, 737 [Defendant was the boyfriend of
infant’s mother and had the “responsibility for watching [the
child]” when the injuries occurred; the mother had previously
left the child in defendant’s care; and the defendant “had
babysat” the child “when she [previously] suffered injuries.”].)
       Here, there is no evidence that any of the petitioners
in this case had a role in Gabriel’s life similar to the roles
the defendants had in cases where the defendant had the care
required for liability under Penal Code section 273a. None of the
petitioners ever lived with Gabriel; none fed, bathed, or babysat
him; none had physical custody of Gabriel at any time; none were
present with him while his caregivers were away or slept; and
none provided food or clothing to Gabriel, or otherwise assumed a
role as his caretaker or caregiver. The People have not referred
us to any case in which a social worker was found to have care or
custody of a child for purposes of Penal Code section 273a, and
our research has revealed none.
       The only case the People cite in support of the care
or custody element is Perez, supra, 164 Cal.App.4th 1462.
That case, however, is distinguished on its facts. In Perez,
the defendant lived in his sister’s home along with his sister’s
daughter, grandson and, two days per month, four-year-old
granddaughter. (Id. at p. 1466.) On other days, the
granddaughter lived with her father in Tijuana, Mexico. (Ibid.)
The defendant had care of the granddaughter based on evidence
that: Whenever the granddaughter was present, the defendant,
who was unemployed, “stayed at the house most of the time”
(id. at p. 1471); there were times when defendant “was the only
adult in the house who was not asleep while [the granddaughter]
was present in the home, and thus, . . . [the granddaughter] was
left in [defendant’s] care on such occasions” (ibid.); the defendant
“babysat” the granddaughter on one occasion (ibid.); and the



                                    24
granddaughter called defendant “ ‘Daddy Joe,’ ” “ate meals
with him,” and “spent ‘a little bit’ of time with him.” (Ibid.) The
Court of Appeal explained that, although the defendant’s sister
and her daughter were the victim’s “presumptive caregivers,”
the defendant “was one of several adults in the home who had
the care or custody of [the granddaughter].” (Id. at p. 1472.)
Here, by contrast, there is no indicia of the caregiving acts that
supported the care or custody finding in Perez.
       The People’s theory regarding the care or custody element
appears to be that the petitioners had the requisite caregiver
status by virtue of various Welfare and Institutions Code statutes
and social services manuals and guides. As a threshold matter,
the theory is based on an implied and unsupported argument
that Penal Code section 273a applies not only to those who have
“the care or custody of any child” but also to those who have a
duty to undertake the care or custody of the child. The text of
the statute, however, does not support this theory: It explicitly
applies to those who, in fact, have the “care or custody” of
the child; the additional words the People would graft onto
the statute—or one who has a duty to undertake the care or
custody of the child—are not in the statute and we may not
rewrite the statute to add them. (See Metromedia, Inc. v. City
of San Diego (1982) 32 Cal.3d 180, 187; Seaboard Acceptance
Corp. v. Shay (1931) 214 Cal. 361, 365–366.)
       Even if Penal Code section 273a was ambiguous and
reasonably susceptible to the People’s interpretation, adopting
that interpretation would be contrary to the rule of lenity:
“[W]hen a statute defining a crime or punishment is susceptible
of two reasonable interpretations, the appellate court should
ordinarily adopt that interpretation more favorable to the
defendant.” (People v. Avery (2002) 27 Cal.4th 49, 57.) This
rule “ ‘ “ensures that criminal statutes will provide fair warning



                                   25
concerning conduct rendered illegal and strikes the appropriate
balance between the legislature, the prosecutor, and the court
in defining criminal liability.” ’ ” (Ibid.) If we assume that the
statute is reasonably susceptible to the People’s interpretation,
this rule compels rejection of that interpretation here because
the petitioners, having not assumed any caregiver or custodial
role in Gabriel’s life, did not have fair warning that their conduct
exposed them to criminal liability, particularly in light of existing
case law, discussed above, which does not suggest such liability
for social workers.
       Moreover, the statutes the People rely upon—Welfare
and Institutions Code sections 16500, 16501, subdivision (c),
16504, and 16506—do not support a duty by the social workers
to act as caretakers or caregivers for purposes of Penal Code
section 273a.
       Welfare and Institutions Code section 16500 provides:
“The Legislature hereby declares its intent, in providing for
this statewide system of child welfare services, that all children
are entitled to be safe and free from abuse and neglect.”
(Welf. & Inst. Code, § 16500.) Welfare and Institutions Code
section 16501, subdivision (c) mandates that “[t]he county shall
provide child welfare services as needed pursuant to an approved
service plan and in accordance with regulations promulgated,
in consultation with the counties, by the department.” (Id.,
§ 16501, subd. (c).) These statutes state only a general legislative
intent and an obligation by “the county” to provide welfare
services as stated. They cannot reasonably be construed as
imposing a duty on individual social workers to act as a caregiver
or caretaker for purposes of Penal Code section 273a.
       Welfare and Institutions Code section 16504,
subdivision (a) provides: “Each county child welfare services
department shall maintain and operate a 24-hour response



                                    26
system. An immediate in-person response shall be made
by a county child welfare services department social worker
in emergency situations in accordance with regulations of
the department. The person making any initial response to
a request for child welfare services shall consider providing
appropriate social services to maintain the child safely in
his or her own home.” (Ibid.) Under this section, a social worker
must respond to emergency situations and “consider providing
appropriate social services to maintain the child safely in his or
her own home.” (Ibid.) The act of considering whether to provide
appropriate social services cannot reasonably be compared with
the kinds of acts—such as residing with, feeding, bathing—that
courts have associated with the role of a caregiver. Thus, even if
“having the care” of a child could be construed to include having
the duty to care for the child, that duty is not created merely by
the statutory requirement that social workers respond to
emergencies and consider whether to provide services.
       The People also rely on Welfare and Institutions
Code section 16504, subdivision (b). 6 That subdivision,
however, applies only when a social worker receives a referral

      6  Welfare and Institutions Code section 16504,
subdivision (b) provides: “A county child welfare services
department social worker shall make an in-person response
whenever a referral is received pursuant to [Welfare and
Institutions Code] Section 11254. Whenever a referral
is received pursuant to [Welfare and Institutions Code]
Section 11254, the county child welfare services department
social worker, within 20 calendar days from the receipt of the
referral, shall determine whether the physical or emotional
health or safety of the individual or child would be jeopardized
if the individual and child lived in the same residence with
the individual’s own parent or legal guardian, or other adult
relative.”



                                   27
“pursuant to [Welfare and Institutions Code] Section 11254.”
(Welf. & Inst. Code, § 16504, subd. (b).) Section 11254 of
the Welfare and Institutions Code applies only “in the case
of any individual who is under the age of 18 years and has
never married, and who is pregnant or has a dependent child
in his or her care.” (Welf. & Inst. Code, § 11254 subd. (a).)
That situation did not occur here and, therefore, neither
section 11254 nor section 16504, subdivision (b) apply. Even
if it did, subdivision (b) merely imposes upon social workers
the duty to “determine” whether the “physical or emotional
health or safety” of the unmarried minor and child who are
the subjects of a referral would be jeopardized if they “lived in
the same residence with the individual’s own parent or legal
guardian, or other adult relative.” (Welf. & Inst. Code, § 16504,
subd. (b).) It neither constitutes “having the care” of a child for
purposes of Penal Code section 273a, nor imposes a duty of such
care.
        The People’s reliance on Welfare and Institutions Code
section 16506, subdivision (b) is similarly misplaced. That
statute provides that the “county child welfare department staff ”
shall provide or arrange for family maintenance services for
“[f]amilies whose child is in potential danger of abuse, neglect,
or exploitation, who are willing to accept services and participate
in corrective efforts, and where it is safe for the child to remain
in the child’s home only with the provision of services.” (Welf. &
Inst. Code, § 16506, subd. (b).) Providing or arranging for family
maintenance services is not akin to “having the care” of the
child, as courts have construed that phrase; and a duty to provide
or arrange such services is not equivalent to a duty to act as a
caretaker or caregiver.
        The People also rely on a provision of the California
Department of Social Services Child Welfare Services manual of



                                   28
policies and procedures, which states: “The social worker initially
investigating a referral shall determine the potential for or the
existence of any condition(s) which places the child, or any other
child in the family or household, at risk and in need of services
and which would cause the child to be a person described by
Welfare and Institutions Code Sections 300[, subdivisions] (a)
through (j).” The duty to make the determination required by
the manual does not make one a caretaker or impose a duty to
act as one.
       Lastly, the People point to a provision in the DCFS
procedural guide which provides that a social worker “may
detain a child without a court order if the [social worker]
determines that a child is described by Welfare and Institutions
Code [section] 300, [subdivisions] (b) or (g) and is in immediate
danger of suffering serious physical injury and there is no less
intrusive means of protecting the child.” This provision mirrors
Welfare and Institutions Code section 306, subdivision (a)(2),
which, as discussed in part B.1, is permissive, not mandatory,
and does not require a social worker to take a child into
protective custody.
       In sum, the statutes the People rely on create duties on
the part of the county to provide child welfare services (Welf. &
Inst. Code, § 16501, subd. (c)), and on the part of social workers
to respond immediately in person in emergency situations (id.,
§ 16504, subd. (a)), to consider providing appropriate services
(ibid.), and to provide or arrange for family maintenance services
in particular situations (id., § 16506, subd. (b)). The existence
of these duties, by themselves or collectively, do not constitute
“having the care or custody” of a child within the meaning of
Penal Code section 273a, subdivision (a); and, assuming the rule
of lenity does not apply, the statutes do not create a duty to have
such care or custody. Although there may be consequences to



                                    29
social workers who fail to fulfill these duties, the consequences
do not include criminal liability for child abuse under Penal Code
section 273a.

      C.    Government Code Section 6200
       The People allege that the petitioners violated Government
Code section 6200 because each “was an officer having custody
of a record, map, book, paper and court proceeding, filed and
deposited in a public office, and placed in the defendant’s hands
and, as to the whole and part thereof, did steal, remove, secrete,
destroy, mutilate, deface, alter and falsify said document.” 7 More
particularly, the People assert that the petitioners committed
this crime because they “either made knowingly false entries,
or permitted knowingly false entries to be made or maintained in
the DCFS . . . electronic systems.”
       Clement and Merritt contend that they were not “officer[s]”
within the meaning of Government Code section 6200. We agree.
       Government Code section 6200 does not define the term,
“officer.” Courts have construed the term to mean one who holds
a position “ ‘ “created by the Constitution or authorized by some
statute” ’ ” and who is “ ‘ “clothed with a part of the sovereignty of
the state to be exercised in the interest of the public.” ’ ” (Bennett
v. Superior Court (1955) 131 Cal.App.2d 841, 844 (Bennett);

      7 Government Code section 6200 provides: “Every officer
having the custody of any record, map, or book, or of any paper
or proceeding of any court, filed or deposited in any public office,
or placed in his or her hands for any purpose, is punishable by
imprisonment pursuant to subdivision (h) of Section 1170 of
the Penal Code for two, three, or four years if, as to the whole
or any part of the record, map, book, paper, or proceeding, the
officer willfully does or permits any other person to do any of
the following: [¶] (a) Steal, remove, or secrete. [¶] (b) Destroy,
mutilate, or deface. [¶] (c) Alter or falsify.” (Gov. Code, § 6200.)



                                     30
accord, Kirk v. Flournoy (1974) 36 Cal.App.3d 553, 557.) As
our Supreme Court explained in another context, “where the
[L]egislature creates the position, prescribes the duties, and
fixes the compensation, and these duties pertain to the public
and are continuing and permanent, not occasional or temporary,
such position or employment is an office and he who occupies it
is an officer. In such a case, there is an unmistakable declaration
by the [L]egislature that some portion, great or small, of the
sovereign functions of government are to be exercised for the
benefit of the public, and the [L]egislature has decided for itself
that the employment is of sufficient dignity and importance to
be deemed to be an office.” (Patton v. Board of Health etc. (1899)
127 Cal. 388, 398.)
       The California Constitution establishes three county
officers—sheriff, the district attorney, and assessor—and the
Legislature has enacted a list specifying “[t]he officers of a
county.” (Cal. Const., art. XI, § 1, subd. (b); Gov. Code, § 24000.)
The Legislature has further provided that “deputies” of an officer
are deemed “officer[s]” for purposes of laws that confer power
or impose liability on an officer. (Gov. Code, § 24100.) Courts
have relied on these statutes in concluding that the statutorily
enumerated county officers and their deputies are officers for
purposes of Government Code section 6200. (See, e.g., People v.
Pearson (1952) 111 Cal.App.2d 9, 17 (Pearson).) Thus, because
a sheriff is a statutorily enumerated county officer (Gov. Code,
§ 24000, subd. (b)), a deputy sheriff was deemed an officer for
purposes of Government Code section 6200 in Pearson, supra,
111 Cal.App.2d at page 17. Similarly, a county treasurer
is an enumerated officer (Gov. Code, § 24000, subd. (f)), and
an employee of the treasurer with the authority to negotiate
payment plans with delinquent account holders was deemed an




                                    31
officer for purposes of Government Code section 6200 in People v.
Varon (1987) 189 Cal.App.3d 1163, 1167.
        Charter counties, such as Los Angeles County, are
constitutionally authorized to specify different or additional
county officers. (Cal. Const., art. XI, § 4, subds. (c) & (e).)
Los Angeles County has done so, and has specified numerous
elected and appointed “officers.” (L.A. County Charter, art. IV,
§ 14.) 8 For purposes of determining whether one is an officer
within the meaning of Government Code section 6200, there
is no reason to treat Los Angeles County’s enumeration of
officers differently from the treatment courts have given to the
Legislature’s enumeration of county officers; that is, one who is
identified as an officer in the Los Angeles County Charter is, like
one who is identified as a county officer in the Government Code,
an officer for purposes of Government Code section 6200.
        The petitioners are employees of DCFS, a department
created by Los Angeles County ordinance and headed by its
“Director.” (L.A. County Code, §§ 2.38.010, 2.38.020; L.A. County


      8  The Los Angeles County’s elected officers are: The
members of the Board of Supervisors (L.A. County Charter,
art. II, § 4) and the “Sheriff, District Attorney, and Assessor” (id.,
art. IV, § 12). The appointive officers of Los Angeles County are:
Auditor, Members of the Board of Education, Members of the
Board of Law Library Trustees, Members of the Civil Service
Commission, Coroner, County Clerk, County Counsel, Fish and
Game Warden, Health Officer, Horticultural Commissioner,
License Collector, Livestock Inspector, Members of the Probation
Committee, Probation Officer, Public Administrator, Public
Defender, Purchasing Agent, Recorder, Registrar of Voters,
Road Commissioner, Superintendent of Schools, Surveyor, Tax
Collector, Treasurer, Director of Hospitals, Director of Public
Social Services, Director of Adoptions, and Director of Personnel.
(Id., art. IV, § 14.)



                                     32
Ord. Nos. 84-0125, § 2, 94-0101, § 1.) Neither the Constitution
nor the Legislature created the positions, prescribed the
duties, or fixed the compensation of the director of DCFS or
its employees; they are employed by and act on behalf of the
county, and are not “ ‘ “clothed with a part of the sovereignty
of the state.” ’ ” (Bennett, supra, 131 Cal.App.2d at p. 844; see
California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th
231, 255 [“ ‘states are sovereign but cities and counties are
not’ ”].) Nor are their positions within either the Government
Code’s enumeration of county officers or Los Angeles County’s
list of officers in its charter. Therefore, under any test for
determining whether one is an officer for purposes of Government
Code section 6200, petitioners were not officers. (Cf. Cleland v.
Superior Court (1942) 52 Cal.App.2d 530, 537 [superintendent
of county hospital was not an officer because the position was not
established as an office by the Legislature or the county].) 9


      9  Our dissenting colleague relies on Welfare and
Institutions Code section 215, which provides that “the term
‘probation officer’ shall include . . . any social worker in a county
welfare department . . . when supervising dependent children
of the juvenile court pursuant to [Welfare and Institutions Code]
Section 272 by order of the court under [Welfare and Institutions
Code] Section 300.” Even when social workers have the
responsibilities of probation officers for the purposes identified in
Welfare and Institutions Code section 215, however, that statute
did not transform the defendants into deputies of the probation
officer for purposes of Government Code sections 6200 and 24100;
they remained employees of DCFS, a county “department,” not an
“office,” that is headed by a “director,” not an “officer.” (Compare
L.A. County Charter, §§ 12, 14 [establishing county officers] with
L.A. County Code, §§ 2.38.010, 2.38.020, 2.38.040 [establishing
DCFS as a county department].)




                                    33
       Before the trial court, the People argued that the
petitioners are officers because (1) they are employed as social
workers and supervising social workers; (2) they held college level
degrees; and (3) they received training relevant to their positions.
The People did not explain how these facts support the assertion
that the petitioners are officers, and they offered no citation to
authority to support the contention. Although the magistrate, by
holding petitioners to answer the charge, implicitly decided that
there was some evidence that petitioners were officers, neither
the magistrate nor the trial court expressly addressed the issue.
       In response to the petitions filed in this court, the People
argue that petitioners are officers because they were appointed
by the DCFS director, their salaries are fixed by ordinance, and
they come within the definition of a “professional” worker under
the Los Angeles County Code. (See L.A. County Code, § 5.04.030,
subd. (Q).) The People offer no evidence or authority to support
a finding that the director of DCFS is an officer, or explain why
we should not rely on the county’s enumeration of officers in
its charter. Because the DCFS director is not an officer, the
subordinates the director appoints are not officers, even if the
county classifies them as “professional” employees and sets their
salaries.
       The People also point out that neither Bom nor Rodriguez
raised the argument that they are not officers; only Merritt and
Clement asserted it. We may, however, decide the issue for all
parties because the pertinent facts are undisputed, the issue is
purely legal, and there is no basis for applying the law differently
among the petitioners. (See Tan v. California Fed. Sav. & Loan
Assn. (1983) 140 Cal.App.3d 800, 811 [court may decide case on
issue not raised “under fair procedure in an appropriate case”].)
The People, who have opposed the argument asserted by Merritt
and Clement, do not suggest that they were deprived of the



                                   34
opportunity to make some other or additional argument that
would apply to Bom or Rodriguez. To hold, as the People suggest,
that the counts of violating Government Code section 6200 should
be maintained as to two petitioners because they did not raise the
point, even though the counts are dismissed as to the other two
petitioners, would merely put the former petitioners to the task of
raising this point after remand, at which time this opinion would
supply the law of the case compelling the dismissal of the counts
against them. We decline to require such a waste of time and
judicial resources, and therefore apply the law to each petitioner.
       Because the petitioners are not officers within the meaning
of Government Code section 6200 as a matter of law, the charges
of violating that statute must be dismissed. 10




      10 Because we conclude that the information shall be
dismissed, we do not reach any other argument asserted by
petitioners.



                                   35
                        DISPOSITION
        Let a peremptory writ of prohibition issue directing
respondent superior court to vacate its order denying petitioners’
motions to dismiss the information, and to issue a new order
granting the motion and setting aside the information. Upon this
decision becoming final, our prior order to stay proceedings below
is lifted.
      CERTIFIED FOR PUBLICATION.




                                          ROTHSCHILD, P. J.
I concur.




                  WEINGART, J.*




      * Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



                                  36
CHANEY, J., Concurring and Dissenting


      A.    Penal Code Section 273a
       I agree that People v. Heitzman (1994) 9 Cal.4th 189
(Heitzman) precludes petitioners’ prosecution under Penal Code
section 273a. However, I view the application of Heitzman here
as falling squarely within the category of unintended
consequences Justice Baxter identified in his Heitzman dissent.
       The People have alleged facts that, if proven, would suffice
to show that Rodriguez, Bom, Clement, and Merritt did not
merely permit Gabriel’s mother and her boyfriend to murder
Gabriel, they enabled it. By abdicating their responsibilities and
falsifying documents, these social workers prevented the system
from working and prevented anyone else from rescuing Gabriel.
       Gabriel’s first-grade teacher, Jennifer Garcia, began calling
DCFS about Gabriel in October 2012. When she initially called,
Garcia called DCFS’s Child Protection Hotline. Petitioner
Rodriguez (supervised by petitioner Bom) was assigned as the
primary social worker on Gabriel’s case. According to Garcia,
Rodriguez told Garcia to call her directly in the future—
bypassing the Child Protection Hotline—because it was an open
case. “After my initial call to the hot line number,” Garcia
testified, “once I received contact by [petitioner] Rodriguez telling
me to call her, I was under the impression that calling her was
reporting at that time . . . . [¶] . . . [¶] . . . She said call me.
Contact me. Let me know what is going on. It’s an open case. So
I did.”
       From her very first contact with Gabriel, Rodriguez omitted
injuries from the body chart she created to document Gabriel’s
injuries. On December 28, 2012, Rodriguez added and
substantiated a general neglect allegation to Gabriel’s case, even
though the allegations were of physical abuse. And although a
variety of Gabriel’s injuries had been reported to her and
observed by her, in an effort to move Gabriel’s file to DCFS’s
Family Preservation unit—a move that could not happen if social
workers concluded Gabriel could not safely remain in his home—
Rodriguez classified Garcia’s October physical abuse report as
inconclusive. Bom approved the documents Rodriguez
manufactured to have Gabriel’s case transferred. And in spite of
even more allegations of physical abuse the day before the case
was to be transferred to the Family Preservation unit, Bom still
approved the transfer.
       Gabriel’s case was transferred to the Family Preservation
unit on January 31, 2013. Rodriguez never told Garcia that the
case had been transferred, so Garcia continued making phone
calls to Rodriguez that went unreturned.
       The Family Preservation unit supervisor, petitioner
Merritt, assigned Gabriel’s case to petitioner Clement on January
31, 2013. The People have alleged that Clement’s documentation
is replete with significant misrepresentations. The cumulative
effect of Clement’s false statements (that Merritt reviewed and
approved) is that in spite of continued and relentless torture and
abuse, DCFS identified no threat to Gabriel’s safety and was thus
free to close his case; “an accurate assessment,” the People allege,
“would have prevented the case from being closed under DCFS
policy.”
       The People allege that Rodriguez, Bom, Clement, and
Merritt did not violate the statute merely by failing to act, but
rather by acting in a way that heightened the risk to Gabriel and
prevented others from helping. California cases have found a




                                    2
duty under similar circumstances in different contexts: “courts
have found a special relationship giving rise to an affirmative
duty to act where some act or omission on the part of the
defendant either created or increased the risk of injury . . . or
created a dependency relationship inducing reliance or
preventing assistance from others. [Citations.] Where, however,
the defendant took no affirmative action which contributed to,
increased, or changed the risk which would otherwise have
existed, and did not voluntarily assume any responsibility to
protect the person or induce a false sense of security, courts have
refused to find a special relationship giving rise to a duty to act.”
(People v. Oliver (1989) 210 Cal.App.3d 138, 147.)
       Heitzman’s analysis of Penal Code section 368, subdivision
(a), which is virtually identical to Penal Code section 273a,
further limits the extent to which a duty may arise by limiting
liability under Penal Code section 273a to only those who have
the ability to control the ultimate abuser. Justice Baxter’s
Heitzman dissent explained that the opinion must have been
focused on bystander liability. Justice Baxter explained that he
believed the “special relationship” test the Heitzman Court
fashioned “dishonor[ed]” the statute’s “clear intent.” (Heitzman,
supra, 9 Cal.4th at p. 216 (dis. opn. of Baxter, J.).) Justice Baxter
wrote that the “statute applies to ‘any person’ who commits the
misconduct described therein. The quoted phrase is specific,
unambiguous, and subject to no construction ‘other than a literal
one.’ ” (Id. at p. 217 (dis. opn. of Baxter, J.).) I agree with Justice
Baxter.
       It is accurate that these social workers did not have “the
ability to control” the conduct of Gabriel’s mother and her
boyfriend. I agree, therefore, that because of Heitzman,




                                      3
Rodriguez, Bom, Clement, and Merritt may not be prosecuted
under Penal Code section 273a.
   B.    Government Code Section 6200
    I would conclude that petitioners Rodriguez, Bom, Clement,
and Merritt are “officers” within the meaning of Government
Code section 6200 and may be prosecuted under that statute.
       In 1857, the Supreme Court defined officers as “all persons
in any public station or employment conferred by government”
and concluded that one was a public officer where he was
“appointed by government; the duties which he is to perform
concern the public, and he is paid out of the public treasury . . . .”
(Vaughn v. English (1857) 8 Cal. 39, 42.) In 1921, the Supreme
Court spoke at length: “A public officer is a public agent and as
such acts only on behalf of his principal, the public, whose
sanction is generally considered as necessary to give the act
performed by the officer the authority and power of a public act
or law. The most general characteristic of a public officer, which
distinguishes him from a mere employee, is that a public duty is
delegated and intrusted to him, as agent, the performance of
which is an exercise of a part of the governmental functions of the
particular political unit for which he, as agent, is acting. There
are other incidents which ordinarily distinguish a public officer,
such, for instance, as a fixed tenure of position, the exaction of a
public oath of office, and, perhaps, an official bond, the liability to
be called to account as a public offender for misfeasance or
nonfeasance in office and the payment of his salary from the
general county treasurer. [Citations.] [¶] . . . As a matter of
course, in keeping with these definitions, a county officer is a
public officer, and may be specifically defined to be one who fills a
position usually provided for in the organization of counties and




                                      4
county governments and is selected by the political subdivision of
the state called the ‘county’ to represent that governmental unit,
continuously and as part of the regular and permanent
administration of public power, in carrying out certain acts with
the performance of which it is charged in behalf of the public.”
(Coulter v. Pool (1921) 187 Cal. 181, 187.)
       By 1978, California courts had distilled “public officer”
down to two necessary components: “first, a tenure of office
which is not transient, occasional, or incidental but is of such
nature that the office itself is an entity in which incumbents
succeed one another and which does not cease to exist with the
termination of incumbency and, second, the delegation to the
officer of some portion of the sovereign functions of government
either legislative, executive, or judicial.” (City Council v.
McKinley (1978) 80 Cal.App.3d 204, 210.)
       DCFS’s social workers are public officers by any of those
measures. One division of this court has analogized DCFS’s
social workers to criminal prosecutors: “Although child services
workers do not initiate criminal proceedings, their responsibility
for bringing dependency proceedings, and their responsibility to
exercise independent judgment in determining when to bring
such proceedings, is not very different from the responsibility of a
criminal prosecutor. The social worker must make a quick
decision based on perhaps incomplete information as to whether
to commence investigations and initiate proceedings against
parents who may have abused their children.” (Alicia T. v.
County of Los Angeles (1990) 222 Cal.App.3d 869, 880.)
       The history of DCFS and the Los Angeles County Charter
also support the conclusion that DCFS’s social workers are public
officers. The Los Angeles County Charter, like the Government




                                    5
Code, has an enumerated list of county officers. Although the
Government Code list does not contain a “Director of Hospitals”
or a “Director of Public Social Services,” the County Charter does
list both of those “officers.” (Compare Gov. Code, § 24000, subds.
(a)-(y) with L.A. County Charter, art. IV, § 14.) Presumably,
then, “Director of Hospitals” or “Director of Public Social
Services” can be included in the Government Code’s enumeration
as one of “[s]uch other officers as are provided by law.” (Gov.
Code, § 24000, subd. (y).) The County Charter contains a similar
provision: “Such other officers as may hereafter be provided by
law shall also be appointive.” (L.A. County Charter, art. IV,
§ 14.)
       In fact, the County Charter enumerates as one of its
“officers” a “Director of Adoptions.” (L.A. County Charter, art. IV,
§§ 14, 22 ½.) When the County amended its charter to create
DCFS, though, it moved all responsibility of the “Director of
Adoptions” to the Director of DCFS: “Administration of all
adoption activities: To direct adoption casework activities, such
as matching children with adoptive parents, coordinating
interagency placement of children, securing court orders
declaring children abandoned, and recruitment of foster and
adoptive homes, including, but not limited to, all activities and
functions of the former department of adoptions set forth in
repealed County Code Chapter 2.38.” (L.A. County Code,
§ 2.38.040(F).) 11


      11 I do not find the designation of DCFS as a “department”
under the Los Angeles County Code meaningful in this context.
The Los Angeles County Code defines a “subordinate officer” as
“an officer subordinate to and acting under the direction of the




                                    6
       These social workers are public officers under any of the
various court-created definitions of the term. They are also
public officers under the statutes that enumerate public offices of
Los Angeles County and the County Code section creating and
empowering the Director of DCFS to perform the duties of a
specifically-enumerated public office. And they are also public
officers according to the Legislature’s designation of social
workers as probation officers in the context of the performance of
their DCFS duties. (See Gov. Code, § 24000, subd. (x); Welf. &
Inst. Code, § 215.)
       Welfare and Institutions Code section 215 states “[a]s used
in this chapter, unless otherwise specifically provided, the term


department head and his assistant officer or assistant officers.”
(L.A. County Code, § 2.02.240, italics added.) Nor do I find the
creation of DCFS as part of Title 2, Division 3 of the Los Angeles
County Code any more persuasive. The “Board of Supervisors” is
also created and described as part of Title 2, Division 3,
governing county “departments and other administrative bodies,”
yet it would seem impossible to argue that the Supervisors are
not public officers. (L.A. County Code, § 2.36.010 et seq.)
Chapter 2.52 of the Los Angeles County Code creates and
describes the Treasurer-Tax Collector, Chapter 2.77 creates and
describes the Department of Public Health, Chapter 2.84 creates
and describes the County Law Library, and Chapter 2.102
creates and describes the Department of Public Social Services,
and all of those are in Title 2, Division 3 of the Los Angeles
County Code. The Los Angeles County Charter lists the
Treasurer, Tax Collector, Health Officer, Members of the Board of
Law Library Trustees, and the Director of Public Social Services
on its enumerated list of county officers, which includes “[s]uch
other officers as may hereafter be provided by law.” (L.A. County
Charter, art. IV, § 14.)




                                    7
‘probation officer’ or ‘social worker’ shall include the juvenile
probation officer or the person who is both the juvenile probation
officer and the adult probation officer, any social worker in a
county welfare department . . . .” The Los Angeles County Code
further provides: “Employees of the [DCFS] . . . shall perform all
activities necessary to provide protective services to juveniles.
Designated department employees providing services to juveniles
shall be deemed to be social workers in a county welfare
department, pursuant to Welfare and Institutions Code Sections
215 . . . .” (L.A. County Code, § 2.38.050.)
       I am most disturbed by the negative incentives this case
creates for social workers and for DCFS. Allowing a social
worker to evade liability for falsifying a public document would
incentivize social workers to put their own interests in avoiding
liability for their misdeeds above the purpose of the state’s child
welfare statutory scheme, which is child safety. The petitioners’
actions here prevented the system from working in whatever way
it might have had they done their jobs honestly, and offers no
incentive for either DCFS or individual social workers to work to
reform and repair the parts of the system that may fail the
children it is intended to protect. We have, in effect, encouraged
DCFS and its social workers to cover their tracks if they stumble
on the cracks in the system.
                                  ***
       Although I agree that the petitioners may not be
prosecuted under Penal Code section 273a, I would find that they
may be prosecuted as public officers under Government Code
section 6200.

                                          CHANEY, J.




                                    8
