by Jacob Barrett

In a stunning decision reached on December 16, 2021, the Court of Appeal of the State of California, Third Appellate District, absolved the state Department of Corrections and Rehabilitation (CDCR) of any liability to warn a woman murdered by her paroled grandson that he might be dangerous.

The decision reversed a $2.7 million award that a jury made to Rachel Renee Russell’s surviving son for her wrongful death after CDCR paroled her grandson, Jerome Sidney DeAvila, who then raped and murdered her.

Russell raised DeAvila and treated him as her son. But he developed the need for psychiatric services by age 12. At age 19, he was prescribed anti-psychotic medication. By 2004, he was 30 and incarcerated by CDCR, where he started receiving “treatment” until his eventual release. In December 2011, DeAvila was transferred to Atascadero State Hospital, where he was eventually diagnosed by psychologist Dr. Michael Selby with schizoaffective disorder and alcohol dependence. Importantly, Selby concluded that DeAvila “represent[ed] a substantial danger of physical harm to others by reason of his severe mental disorder.”

Two days later, psychologist Dr. Robert Suiter evaluated DeAvila and concluded “there is no reasonable likelihood he would follow through with treatment” if released. Suiter observed DeAvila demonstrated homicidal ideation specific to his delusional system, and he had indicated he would act out aggressively towards others he perceived as people who would harm him.

“In total, there is more than sufficient data to conclude [DeAvila] presents a significant risk of harm to others,” Suiter concluded.

In May 2012, Adolfo Romero became DeAvila’s parole agent, taking over from Roy Lacy, who had worked the case since 2007. From the time he took over until February 2013, when Russell was murdered, Romero worked in a unit that supervised 20 to 30 parolees. According to court records, he didn’t read the psychological reports written by Selby or Suiter, although they were available to him in DeAvila’s file. However, Romero arrested DeAvila for parole violations several times.

On February 23, 2013, shortly after his release from the last of those arrests, DeAvila raped and murdered his grandmother at her home, leaving her naked body in a wheelbarrow in her back yard, where it was discovered by her son, Steven Russell.

The bereaved son then filed suit in state court against CDCR for failing to warn his mother of DeAvila’s dangerous propensities. A jury agreed that the parole agents “knew or should have known that DeAvila was a foreseeable danger to Russell” when they gave “instruction to Russell that DeAvila could remain in Russell’s home during the day.” While that “did not amount to ‘placing’ DeAvila in the home,” the jury continued, it was evidence of “a special relationship” the agents had with Russell. So when they “failed to warn Russell of the foreseeable danger that was unknown to her,” that “failure to warn was a substantial factor in causing [her] death,” since “DeAvila’s dangerousness was not known or readily discoverable to Russell before February 23, 2013.”

The jury determined damages for Russell’s wrongful death totaled $4.5 million, apportioning 40% of the fault to DeAvila and the rest to the parole agents. The trial court then entered judgment against CDCR for $2.7 million plus costs, reflecting “the jury’s finding that [CDCR] was 60 percent at fault for Russell’s death.”

CDCR appealed, making the galling assertion that it had no duty to warn Russell of DeAvila’s dangerous propensities and, even if it had such a duty, it was immunized from liability. The Court of Appeal analyzed this and decided that though the jury found a special relationship between the parole agents and Russell that required them to warn her, “we disregard the jury’s actions on this issue.”

At the outset, the Court acknowledged “that both Lacy and Romero were aware or should have been aware that DeAvila suffered from mental illness, abused drugs, had a history of violence, and posed a danger to those around him.” Lacy categorized DeAvila as a “high-violent” parolee and was aware DeAvila “had tested positive for both cocaine and methamphetamine.” Romero was aware that “DeAvila had repeatedly violated his parole by using marijuana, methamphetamine, and alcohol, removing his GPS monitoring device, and absconding.” Romero had himself requested multiple warrants for DeAvila’s arrest, each one asserting that “DeAvila’s presence in the community posed a threat to public safety.”

Yet the Court held it was “compelled to agree” with CDCR that this was insufficient to establish a relationship existed between the agents and Russell that would give rise to a duty to warn her, since “[t]here is nothing to suggest … that either parole agent was aware that DeAvila posed a particularized threat of harm to Russell.”

“Even the Selby and Suiter reports, which concluded that DeAvila posed a general danger of physical harm to others, did not mention Russell by name,” the Court added. Thus the judgment against CDCR was reversed. Russell was represented in his case by attorney Jeffrey I. Ehrlich of the Ehrlich Law Firm in Claremont and the Law Offices of Kenneth N. Meleyco in Stockton. Sanctions imposed by the trial court on Meleyco for refusing to stop making arguments in his opening statement were also affirmed. The parties were ordered to bear their own attorney’s fees and costs. See: Russell v. Dep’t of Corr. & Rehab., 72 Cal. App. 5th 916 (2021).

Russell then asked the state Supreme Court to review the decision. But his petition was denied on March 9, 2022. See: Russell v. Cal. Dep’t of Corr. & Rehab., 2022 Cal. LEXIS 1422. 

Additional sources: KTXL, Metropolitan News-Enterprise

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