44 Cal.App.5th 535
Cal. Ct. App.2020Background
- Pamelia Powell (age 69) had seizures and was prescribed multiple CNS depressants; she overdosed and was hospitalized in April and May 2016.
- Marilyn Zemek became Powell’s paid caregiver, acknowledged Powell needed “constant companionship” and help managing medications, and was paid from Powell’s account.
- Zemek escorted Powell out of a care facility against advice; shortly thereafter Powell executed estate documents favoring Zemek (powers of attorney, trust, will).
- Zemek left Powell alone for at least two (possibly four) days in June 2016; Powell was found dead June 17 of multiple drug intoxication (phenobarbital level in lethal range).
- After Powell’s death Zemek used Powell’s credit card and later withdrew ~$201,634 from Powell’s bank accounts; Zemek was held to answer on counts including murder, elder abuse, grand theft, and perjury.
- The trial court denied Zemek’s section 995 motion; this writ petition challenged sufficiency of evidence as to malice, causation, and ownership of the stolen funds.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Zemek) | Held |
|---|---|---|---|
| Sufficiency of malice (express or implied) | Evidence supports motive and knowledge of overdose risk (estate changes, prior overdoses, caretaker role, removal from facility) — supports either express or implied malice | Insufficient evidence of malice; magistrate found no express malice and rejected implied malice | Court upheld that magistrate’s statement was a legal conclusion; evidence sufficed to support a strong suspicion of either express or implied malice (motive, knowledge, conscious disregard) |
| Causation (proximate cause of death) | Zemek’s omission (leaving Powell alone with access to meds) set in motion reasonably foreseeable chain leading to overdose | Insufficient proof Zemek’s act/omission was the legal cause of death | Court held proximate causation was supported: Powell’s foreseeable self‑overdose was a dependent intervening cause, so Zemek’s omission could be the legal cause |
| Ownership of stolen property | Zemek was not true owner because, if she maliciously killed or committed elder‑abuse disqualifying conduct, she forfeited any benefit; property therefore belonged to estate/heirs | Zemek argued she was executor/trustee/sole beneficiary and thus the property was hers | Court held there was sufficient evidence to question Zemek’s title (forfeiture/disqualification theories), so the People could allege theft from Powell’s estate — ownership was a jury question |
| Effect of magistrate’s refusal to find express malice | Magistrate’s refusal was a legal conclusion that may be reviewed; it does not preclude prosecution for first‑degree murder if evidence supports it | Zemek argued magistrate’s finding conclusively foreclosed first‑degree theory | Court treated magistrate’s remarks as a legal conclusion and reviewed independently; People may pursue degree(s) supported by the evidence |
Key Cases Cited
- Cooley v. Superior Court, 29 Cal.4th 228 (2002) (probable‑cause review standard for preliminary hearings)
- Pizano v. Superior Court, 21 Cal.3d 128 (1978) (magistrate’s legal conclusions are reviewable)
- Dudley v. Superior Court, 36 Cal.App.3d 977 (1974) (distinguishing magistrate disbelief from legal conclusion)
- People v. Heitzman, 9 Cal.4th 189 (1994) (criminal liability for omission requires legal duty; caretakers/custodians covered)
- People v. Burden, 72 Cal.App.3d 603 (1977) (omission of duty equivalent to act for homicide where duty exists)
- People v. Cervantes, 26 Cal.4th 860 (2001) (proximate cause and dependent vs. superseding intervening causes)
- People v. Gonzalez, 54 Cal.4th 643 (2012) (definitions of express and implied malice)