Wednesday, March 12, 2008
Court Upholds Murder Conviction for Failing to Protect Son
By STEVEN M. ELLIS, Staff Writer
A woman who went to bed leaving her son in the care of her boyfriend who had been beating the child only hours earlier can be held criminally culpable in the child’s death for failing to take all reasonable steps to protect him, this district’s Court of Appeal ruled yesterday.
Affirming Sylvia Torres Rolon’s conviction for assault and second degree murder in the death of her one-year-old son at the hands of his father, Div. Four held that a parent who has a duty to protect a young child can be held culpable for injuries inflicted by another if the parent had the ability to take steps to protect the child but failed to do so with the intent of facilitating the offense.
Rolon was at her apartment with Anthony Bill Lopez, her boyfriend and the father of six of her seven children, on April 20, 2003 when the couple’s year-old son, Isaac, would not stop crying. Despite a court order forbidding Rolon from allowing Lopez to be at the apartment, and forbidding Lopez from having any unmonitored contact with the children, Lopez had been staying at the apartment for a week, according to prosecution witnesses.
Thrown Against Wall
At about 6 or 7 p.m., Lopez immersed Isaac in a tub of water and unspecified chemicals, and then threw him against the wall in Rolon’s presence. Isaac stopped crying after hitting the wall, and Lopez went to sleep at about midnight while Rolon stayed up to watch the child.
Isaac began crying again at about 2 a.m., waking Lopez. When Isaac continued crying after being fed, Lopez punched him in the chest and told Rolon not to get involved.
A neighbor testified that that she heard a screaming child in the apartment early that morning, but that the screaming stopped when the neighbor heard a series of thumps against the wall that lasted for three minutes.
At about 6 a.m. that morning, Rolon went to bed after Lopez said he would take care of Isaac.
An hour later, Lopez woke Rolon and told her that Isaac was not breathing. She got up and saw Lopez administering cardiopulmonary resuscitation to Isaac.
Lopez asked Rolon for help in reviving Isaac, but told her not to use the phone because “[t]hey’re going to take all the kids away.”
In an attempt to revive the child, the two of them immersed Isaac in a bathtub filled with water. When that failed, Lopez attempted CPR again, and then poured rubbing alcohol on the child’s body before wrapping him in a blanket and putting him in a crib.
Returned With Gasoline
Rolon and Lopez kept the other children in the apartment that day, telling them that Isaac was at the hospital. At about 11:00 p.m. that night, Lopez left the apartment with one of the children to purchase gasoline, and, upon his return, told Rolon and the children to go to bed.
Rolon rose around 2 a.m. and saw Lopez in the kitchen, where he told her he was going to erase Isaac’s identifying features. He then took Isaac into the bathroom with the gasoline, a chair and a bucket, and Rolon stood outside while he burned Isaac’s body in the bucket.
Lopez brought the body out of the bathroom and began wrapping it in plastic, and then left the house at approximately 7 a.m. with the plastic-wrapped body, the bucket and the chair.
Police officers subsequently arrested him and discovered Isaac’s body in his van.
An autopsy revealed that Isaac suffered 24 blunt force injuries within the day prior to his death. It also revealed blood pooled in his lungs, indicating suffocation, and pseudoephedrine in an amount five to twenty-five times the normal dosage for a child.
The pathologist concluded that Isaac’s death was probably caused by a combination of suffocation, the pseudoephedrine overdose and his injuries.
Lopez was charged with—and later convicted of—assault on a child under eight years of age resulting in death, first degree murder during the commission of torture, and willfully causing a child to suffer under circumstances likely to result in death.
Rolon was charged with similar assault and suffering counts, and second degree murder.
At Rolon’s trial, the prosecution argued that Lopez killed Isaac, and that Rolon aided and abetted him by failing to perform her parental duty to protect Isaac. Over Rolon’s objection, Los Angeles Superior Court Judge Michael E. Pastor instructed the jury that Rolon had a duty to take all steps reasonably necessary under the circumstances to protect Isaac from harm.
Pastor also instructed the jury that Rolon’s failure to perform her duty would be the equivalent of an affirmative act for the purposes of finding aiding and abetting, implied malice and second degree murder, but refused to instruct the jury on Rolon’s theory of duress.
The jury convicted Rolon, and she appealed, arguing that the trial court’s instructions were erroneous.
However, the Court of Appeal, in an opinion by Presiding Justice Norman L. Epstein, affirmed the trial court’s judgment.
Noting that “parents have a common law duty to protect their children and may be held criminally liable for failing to do so…,” Epstein wrote that “a parent who knowingly fails to take reasonable steps to stop an attack on his or her child may be criminally liable for the attack if the purpose of nonintervention is to aid and abet the attack.”
Based on this reasoning, Epstein concluded that “aiding and abetting liability can be premised on a parent’s failure to fulfill his or her common law duty to protect his or her child from attack…[and] such intentional conduct in support of an aider and abettor can support liability for implied malice murder.”
Emphasizing that liability requires that a parent, by inaction, intend to aid the perpetrator in committing the crime, or that the offense committed be a reasonable and probable outcome, Epstein opined that a jury could reasonably infer Rolon’s intent to aid Lopez “from her presence at the scene of the crime, her duty to protect her child, and her failure to do so.”
He rejected Rolon’s argument that the statement in the trial court’s instruction that a parent must take “every step reasonably necessary under the circumstances” implied that a parent must do whatever is necessary to protect a child, regardless of the danger to the parent in doing so.
“That is not a reasonable reading of the language in the instruction,” he said, “and a reasonable juror would not understand it in that way…. The instruction informs the jury that the parent’s duty is to take all steps reasonably necessary under the circumstances.”
He also rejected Rolon’s argument that she had met this burden, writing:
“She made no effort to aid her son: she did not scream, call 911, ask a neighbor to help or call for help, or do anything else. Instead, she went to sleep and left her son alone with Lopez although she knew Lopez had recently punched him and thrown him against a wall.
“From this evidence, a reasonable jury could infer that appellant was capable of taking some action to protect her child and that she chose not to do so, but to go to sleep and leave her son alone with Lopez. These inferences support the conclusion that appellant did not take every step reasonably necessary under the circumstances to protect her son.”
Justices Thomas L. Willhite Jr. and Steven C. Suzukawa joined Epstein in his opinion.
The case is People v. Rolon, 08 S.O.S. 1474.
Copyright 2008, Metropolitan News Company