Zemek v. Superior Court of Riverside Cnty.
| Decision Date | 22 January 2020 |
| Docket Number | E072844 |
| Citation | 257 Cal.Rptr.3d 729,44 Cal.App.5th 535 |
| Parties | Marilyn ZEMEK, Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; The People, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Richard Blumenfeld, Corona, for Petitioner.
No appearance for Respondent.
Michael A. Hestrin, District Attorney, and Robert A. Hightower, Deputy District Attorney, for Real Party in Interest.
Pamelia Powell, aged 69, had been prescribed multiple central nervous system depressants, with additive effects. In April 2016 and again in May 2016, she had to be hospitalized for overdoses.
In between the two hospital stays, petitioner Marilyn Zemek, who was already Powell's friend, agreed to become her paid caretaker. She acknowledged at the time that Powell needed "constant companionship," including help with "properly taking her medication."
Later in May 2016, petitioner took Powell to petitioner's former attorney. He prepared new estate planning documents for Powell that left everything to petitioner.
In June 2016, petitioner left Powell home alone for at least two days and perhaps as much as four days. During that time, Powell died of an overdose of her prescription medications. After Powell's death, petitioner bought items using Powell's credit card and emptied Powell's bank accounts.
Based on this evidence, a magistrate held petitioner to answer for crimes including murder, elder abuse, and grand theft. The trial court denied petitioner's motion to set aside the information. Petitioner seeks writ review. She argues that there was (1) insufficient evidence of malice, (2) insufficient evidence that she was the legal cause of Powell's death, and (3) insufficient evidence that the money she took did not belong to her. We will reject these contentions and deny the petition.
The following facts are taken from the evidence admitted at the preliminary hearing.**
Around November 2015, petitioner met Pamelia Powell at a "[B]otox party." Thereafter, they became friends.
Powell had heart disease
. She also suffered from seizures. To control them, she had been taking phenobarbital by prescription for years.
In November 2015, Powell gave her friend Dennis McDuffee a general power of attorney and a health care power of attorney; she also signed a new will, naming him as her executor.
Throughout 2016, Powell was 69 years old.
On March 23, Powell had a seizure. A neighbor called paramedics, and she was admitted to a hospital. On her admission, she was "severely confused and disoriented."
On or about April 10, petitioner found Powell on the floor, unconscious due to an overdose.2 Powell was hospitalized again. When admitted, she was completely nonresponsive. During her stay, she was confused and delirious. She needed help to bathe, get dressed, and eat.
On April 18, Powell was discharged to ManorCare, a skilled nursing facility, where she remained until May 2. Around this time, McDuffee and petitioner agreed that petitioner would act as Powell's paid caretaker. Petitioner acknowledged that Powell needed "constant companionship," including help with "properly taking her medication." Petitioner was to be paid — and later was, in fact, paid — out of Powell's checking account.
After Powell was released from ManorCare, petitioner started spending days with her in her home. On May 10, petitioner told McDuffee: "I have been able to keep her on schedule with her medication ...." She added: "I ... manage her meds properly ...." She noted that Powell had proved "unable to stay on track" with her medications on weekends. Finally, she noted that Powell had to wear diapers, because she was too unsteady to make it to the bathroom, even with assistance. On one occasion, she found Powell "in a pool of pee."
On May 16, Powell overdosed again on a combination of phenobarbital
and a benzodiazepine (i.e., a tranquilizer, such as Valium ). Petitioner called 911, and Powell was hospitalized a third time. During her stay, she showed signs of psychosis, visual hallucinations, and confusion. She needed "total assistance" with activities of daily living. Petitioner advised hospital personnel that "Powell had periods of confusion, incontinence, and was frequently falling."
On May 19, Powell was discharged to Desert Springs Healthcare & Wellness Center. While there, she was still confused and disoriented; her decision-making was severely impaired.
On May 27, petitioner checked Powell out of Desert Springs for a day visit. Powell had to be back by 11:00 p.m.; if she was not, she would lose her spot in the facility. As 11:00 p.m. approached, an employee of the facility phoned petitioner and threatened to call the police if she did not bring Powell back. Petitioner returned with Powell at 11:00 p.m. or a little after.
The same employee overheard petitioner trying to convince Powell to leave the facility. She considered this to be "brainwashing." She confronted petitioner and said it would be dangerous for Powell to leave without being cleared by a doctor. Petitioner claimed that she held Powell's health care power of attorney, but she could not produce a copy.
Powell then left with petitioner. The employee followed them out to the parking lot and insisted that Powell sign a form acknowledging that she was leaving against medical advice; Powell did so.
Petitioner took Powell to see an attorney named John Gallegos, who had previously represented petitioner. Petitioner filled out an estate planning questionnaire on Powell's behalf.
Gallegos's files contained:
1. A health care power of attorney in favor of petitioner, signed by Powell on May 28.
2. A general power of attorney in favor of petitioner, signed by Powell on June 3.
3. A revocable living trust, naming petitioner as Powell's contingent trustee and sole beneficiary, signed by Powell on June 10.
4. A will, naming petitioner as Powell's executor and sole legatee, also signed by Powell on June 10.***
In the opinion of an expert witness, Powell did not have the capacity at the time to make such decisions.
On June 17, at 11:30 a.m., petitioner drove into Powell's gated community. At 11:40 a.m., she called 911 and reported that Powell was dead.
Before that, according to gate records, the last time petitioner had been to Powell's house was on June 13; however, the records could have been incomplete.
When the police arrived, petitioner was crying and upset. She identified herself as Powell's friend and "caretaker."
Powell was lying on her back in a recliner. Next to her, there was a bowl of orange Jell-O, but no spoon. There was a white powder around her mouth, which could have been pill residue. Similar white powder was in a bowl next to her. It was never tested.
There were bottles of pills next to her, as well as in the kitchen and in the bedroom, including phenobarbital
, diazepam (Valium ), and leviracetam (Keppra ). A bottle of phenobarbital that was labeled as 270 pills actually contained 277 pills; a second bottle of phenobarbital contained 107 pills.
The cause of death was "multiple drug intoxication." The drugs in Powell's system included two antiseizure medications (phenobarbital
and levetiracetam [Keppra ] ), two antidepressants (venlafaxine [Effexor ] and citalopram [Celexa ] ) and two antianxiety medications (lorazepam [Ativan ] and diazepam [Valium ] ). The level of phenobarbital was in the "lethal range" — more than double the upper limit of the therapeutic range. The level of venlafaxine was also above the therapeutic range.
The deputy coroner estimated the time of death at between 1:30 to 5:30 a.m. on June 17. She could not determine whether the manner of death was accident, suicide, or homicide.
Petitioner told police the last time she saw Powell alive was on June 15. Powell had told her to take a couple of days off. On June 16, she tried to call Powell several times, but there was no answer. She tried again on June 17; when there was still no answer, she went to Powell's home to check on her.4
Petitioner also told police that Powell had a history of depression. She added "that Powell's health was declining, and she was not able to care for herself in the days prior to her death."
Petitioner denied ever giving Powell medication; she said that a company called Visiting Angels came to the house and managed Powell's medications. The police contacted Visiting Angels, which denied that Powell was ever its client or that it ever managed medication for anyone.
On August 8, petitioner purchased a pair of sunglasses while shoplifting two more pairs. She paid with her own credit card, but she signed Powell's name.
After the store reported the shoplifting, a police officer interviewed petitioner. She said that she signed Powell's name because she mistakenly thought she was using Powell's credit card. She claimed she had a right to do so, because she was Powell's "legal caretaker."
In October and November, a total of $7,894.34 was charged to Powell's credit card. Security videos showed petitioner making two of these charges.
On June 2, 2017, petitioner withdrew all of the money from Powell's bank accounts — a total of $201,634.
In a declaration that was filed in Powell's probate case, petitioner denied taking Powell from a hospital against medical advice. She added that Powell phoned her and asked her to pick her up. She also denied taking Powell to see Attorney Gallegos. She stated, "My recollection is that Mr. Gallegos had not been my attorney since 2007." Actually Gallegos had represented her in two court cases in 2013 and 2014.
The People filed a complaint charging petitioner with:
Count 1: Murder (§ 187, subd. (a)),5 with a financial gain special circumstance (§ 190.2, subd. (a)(1)).
Count 2: Elder...
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