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Name: People v. Perez
Case #: D051221
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/21/2008
Summary

Occasional care of a child meets the requirement of “care and custody” for purposes of the child endangerment statute. Perez was convicted of child endangerment under Penal Code section 273a, subdivision (b) for possessing drugs and paraphernalia in his home. Perez lived with his sister, his sister’s daughter, Maria, and on a couple of nights a month, Maria’s four-year-old daughter, S.F.. Maria testified that Perez never babysat, and was never S.F.’s caretaker. Maria had never seen drugs in the home. On appeal, Perez contended that there was insufficient evidence from which the jury could have found that he had “care or custody” of S.F., or that he wilfully caused her health to be endangered. The appellate court rejected the argument, finding that the language of the statute covers not only parents, guardians, and babysitters, but also individuals who do not necessarily have a “parent” relationship to the child, but have been entrusted with the care of the child even for a relatively short period of time. Here, the minor testified that she called Perez “Daddy Joe,” that she ate meals with him, and that he was at the home every time she was there. She said that Perez had babysat her “one day.” There was also testimony that Perez was home all day. The fact that Perez was not the primary caregiver did not mean he did not also provide care to S.F. Further, the fact that Perez had drugs and drug paraphernalia in the home, knowing there were children present, was sufficient to support the jury’s finding that he wilfully caused or permitted S.F. to be endangered. Perez also contended that the trial court erred in rejecting his proposed instruction that “the term care or custody does not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.” The appellate court rejected the argument, finding the proposed instruction an incorrect statement of the law. The instruction could have erroneously implied that the defendant must have affirmatively demonstrated a willingness to assume caretaker duties in order to be found to have had the care or custody of a child in the house.