Berry v. Superior Court

AGLIANO, P. J.

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In the municipal court, defendant was charged with three counts: Involuntary manslaughter . . .; Penal Code section 399; . . . Although murder was not alleged, the People may charge it in the information if the evidence developed at the preliminary hearing supports the charge. . . .

The record shows that on June 13, 1987, James Soto, then aged two years and eight months, was killed by a pit bull dog named "Willy" owned by defendant. The animal was tethered near defendant's house but no obstacle prevented access to the dog's area. The victim and his family lived in a house which stood on the same lot, sharing a common driveway. The Soto family had four young children, then aged ten, four and one-half, two and one-half, and one year.

On the day of the child's death, his mother, Yvonne Nunez, left the child playing on the patio of their home for a minute or so while she went into the house, and when she came out the child was gone. She was looking for him when within some three to five minutes her brother-in-law, Richard Soto, called her and said defendant's dog had attacked James. Meanwhile the father, Arthur Soto, had come upon the dog Willy mauling his son. He screamed for defendant to come get the dog off the child; defendant did so. The child was bleeding profusely. Although an on-call volunteer fireman with paramedical training who lived nearby arrived within minutes and attempted to resuscitate the child, James died before an emergency crew arrived at the scene.

There was no evidence that Willy had ever before attacked a human being, but there was considerable evidence that he was bred and trained to be a fighting dog and that he posed a known threat to people. Defendant bought Willy from a breeder of fighting dogs, who informed defendant of the dog's fighting abilities, his gameness, wind, and exceptionally hard bite. The breeder told defendant that in a dog fight "a dog won't go an hour with Willy and live."

The police searched defendant's house after the death of James and found many underground publications about dog fighting; a pamphlet entitled "42 day keep" which set out the 6-week conditioning procedures used to prepare a dog for a match; a treadmill used to condition a dog and increase its endurance; correspondence with Willy's breeder, Gene Smith; photographs of dog fights; and a "break stick," used to pry fighting dogs apart since they will not release on command. One of Smith's letters dated December 7, 1984, described Willy as having an exceptionally hard bite.

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The victim's mother testified defendant had several dogs. He told her not to be concerned about the dogs, that they would not bother her children, except for "one that he had on the side of the house" which was behind a six-foot fence. Defendant further said this dangerous dog was Willy but that she need not be concerned since he was behind a fence. There was a fence where the dog was tethered on the west side of defendant's house, but the fence was not an enclosure and did not prevent access to the area the dog could reach.

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Defendant's counsel placed great emphasis on certain testimony of the animal control officer, Miller. Counsel claimed that Miller testified Willy's attack on James was completely unpredictable, and that the People are bound by this testimony and therefore cannot argue that defendant ought to have foreseen what would happen. The testimony occurred during cross-examination, as follows: defendant's counsel asked Miller whether he knew of any prior attacks by Willy, and he said no. Then counsel quoted from an article written by Miller saying that even pit bulls with no prior history of aggression have been known to become highly aggressive "when at large, when in a pack, when confronted by any aggressive dog or under other unpredictable situations." Miller affirmed he believed this. Then counsel ruled out such factors as the dog being at large, in a pack, and so forth, and then said the dog being confronted by the little boy "would come under this unpredictable situation then, wouldn't he?" and Miller said yes. Counsel then asked, "So then what you are saying is . . . that without any prior knowledge of unpredictability, Willy could cause an attack such as this, isn't that true?" and Miller said yes.

When testifying, Arthur Soto denied having told any investigator that defendant had warned him about Willy. Counsel interrogating him insinuated that he was afraid to testify about prior warnings because he might jeopardize his civil lawsuit against defendant. Later an officer who had investigated the death and had interviewed Arthur testified pursuant to Evidence Code section 1237 that Arthur had told the officer defendant had warned Arthur to "keep the kids away from the killer dog," meaning Willy.

DISCUSSION

Whether Evidence Is Sufficient to Bind Over on Murder Charge

First, defendant claims that as a matter of law the record does not show implied malice sufficient to require him to stand trial for a charge of second degree murder. As stated above, the issue at this stage of the proceedings is not whether the evidence establishes guilt beyond a reasonable doubt, but rather whether the evidence is sufficient to lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of his guilt of this offense, or whether there is some rational ground for assuming the possibility of his guilt. . . .

The case of People v. Watson, . . . a case involving reckless driving under the influence, states that the test of implied malice in an unintentional killing is actual appreciation of a high degree of risk that is objectively present. There must be a high probability that the act done will result in death and it must be done with a base antisocial motive and with wanton disregard for life. The conduct in Watson, held sufficient to ground a finding of malice, was reckless speeding while intoxicated. Defendant had prior knowledge of the hazards of drunk driving.

The recent decision in People v. Protopappas . . . further elaborates the definition of implied malice. That case found sufficient evidence of implied malice to support the defendant dentist's convictions of the murders of three of his patients, who died because of his recklessness. . . . The court found substantial evidence Protopappas's treatment of his patients was ""aggravated, culpable, gross, or reckless" neglect . . . [which] involved such a high degree of probability that it would result in death that it constituted "a wanton disregard for human life" making it second degree murder.'" . . . The Protopappas court further elaborated the requirements of implied malice thus: "wantonness, an extreme indifference to [the victim's] life, and subjective awareness of the very high probability of her death." . . .

Interestingly, the court in Protopappas referred to the dentist's conduct as "the health care equivalent of shooting into a crowd or setting a lethal mantrap in a dark alley." . . . Similarly here, the People seek to analogize defendant's manner of keeping Willy as the equivalent of setting a lethal mantrap, since anyone could have approached the dog and been at risk of attack. . . .

Another decision which thoughtfully explores the nature of implied malice is People v. Love . . . The facts of that case may be considered more aggravated than in this case or in Protopappas, since in Love the defendant put a gun to the victim's temple and then claimed it went off accidentally. The analysis is nonetheless useful. The court discusses the "fine line between cases involving conduct consonant with the punishment to be imposed for second degree murder and those which are properly lesser crimes" . . . and points out that the former cases all involve "an element of viciousness an extreme indifference to the value of human life." . . . Examples given of such conduct include the striking of a child, assault with a deadly weapon, or a father's neglect in caring for his son. . . .

Love observes that the "continuum of death-causing behavior for which society imposes sanctions is practically limitless with the gradations of more culpable conduct imperceptibly shading into conduct for the less culpable. Our high court has drawn this line placing in the more culpable category not only those deliberate life-endangering acts which are done with a subjective awareness of the risk involved, but also life-endangering conduct which is 'only' done with the awareness the conduct is contrary to the laws of society. Although behavior in the latter category may not be as morally heinous as the former, the difference in culpability does not require the latter crime to be legally shifted into manslaughter slots. The blameworthiness of death-causing conduct which can legitimately be described as involving a high degree of probability that it will result in death where accomplished with an awareness of one's societal duties is not disproportionate to the sanctions which may be imposed for second degree murder. One's felt sense of justice is not moved, much less outraged, when such life-endangering and death-causing conduct is labeled as second degree murder." . . .

The decision in Love sets forth two prerequisites for affixing second degree murder liability upon an unintentional killing. One requirement is the defendant's extreme indifference to the value of human life, a condition which must be demonstrated by showing the probability that the conduct involved will cause death. Another requirement is awareness either (1) of the risks of the conduct, or (2) that the conduct is contrary to law. Here, evidence of the latter requirement is first, that the very possession of Willy may have constituted illegal keeping of a fighting dog. . . . Second, there is evidence that defendant kept Willy to guard marijuana plants, also conduct with elements of illegality and antisocial purpose. Thus the second element which Love required could be satisfied here in a number of ways.

Defendant argues that the elements posited in Love awareness of high risk or antisocial or illegal conduct are insufficient. He says a further requirement is that the defendant have actively killed the victim, rather than being guilty of passive omissions which result in the death. He contends the cases involving implied malice all exhibit a physical act of commission, such as an aggressive act with a weapon or an automobile. In support of his interpretation of the precedent he cites a law review article which makes the observation that a physical act requirement is a "key element" in deciding whether actions create a high probability that death will occur. . . . He also lists many cases where implied malice was grounded on such aggressive acts as reckless driving under the influence . . . He includes in this list the Protopappas case, . . . referring to the "intentional injection of lethal drugs to dental patients."

However, despite defendant's argument that all second degree murders involve acts of commission rather than omission, at least two cases of second degree murder, Protopappas and Burden, supra, arguably rest on reckless failure to provide proper care or treatment. The Protopappas court described the defendant's conduct there in precisely those terms. Burden rests on a father's neglect in caring for his son, namely, allowing him to starve to death. The Burden court said that "the common law does not distinguish between homicide by act and homicide by omission." . . . ""Willful failure of a person to perform a legal duty, whereby the death of another is caused, is murder, . . ."" . . .

Almost any behavior can alternately be stated as a sin of omission or of commission. Therefore the distinction of active and passive behavior is not a reliable means of distinguishing intentional and unintentional homicide. For example defendant seeks to distinguish the spring gun case . . . as one involving an active act of setting the trap; but his conduct could equally be described as stationing the dog in a dangerous location. Rather, as the cases hold, attention is best focused on the difference in mental state, in the defendant's intent. Death by agency of an "abandoned and malignant heart," more precisely defined in Watson, supra, as a subjective appreciation of a high risk of death, is murder; by gross negligence alone is manslaughter.

Have we here evidence of the elements of second degree murder as described in these decisions, namely, the high probability the conduct will result in the death of a human being, a subjective appreciation of the risk, and a base antisocial purpose or motive? The People point to these facts: The homes of defendant and the victim's family shared a lot and were in close proximity, the Soto family had four very young children and defendant knew this; defendant knew the dog Willy was dangerous to the children, as evidenced by the mother's testimony that he told her that dog could be dangerous but was behind a fence; defendant in fact lulled Yvonne into a false sense of security by assuring her the dangerous dog was behind a fence when he was in fact accessible; defendant bred fighting dogs and had knowledge of the nature and characteristics of fighting pit bulls; defendant had referred to Willy as a "killer dog"; pit bulls in fact are sometimes dangerous and will attack unpredictably and without warning; and Willy was a proven savage fighting dog.

From this mass of evidence it is possible to isolate facts which standing alone would not suffice as the basis of a murder charge. . . But the evidence amassed here goes beyond demonstrating that Willy was aggressive towards his own kind. We believe this record shows first, that Willy's owner may have been actually aware of the dog's potential danger to human beings. This mental state may be proved by showing he kept the dog chained, he warned the child's parents that the dog was dangerous to children, and he spoke of the dog as dangerous. Second, the testimony of the animal control officer could support an inference that fighting pit bull dogs are dangerous to human beings, and the record of defendant's extensive knowledge of the breed could support an inference that he knew such dogs are dangerous.

Defendant argues that the testimony of the animal control officer, Miller, regarding the dangerousness of pit bulls, conclusively establishes that Willy's attack was "unpredictable" in the sense that it could not reasonably have been anticipated. This interpretation is not compelled. Some of that testimony consists of responses to ungrammatical questions and as such does not establish any proposition with certainty. But a possible fair reading of Miller's testimony is that he used "unpredictable" not in the sense that no one could predict whether the dog would ever attack, but rather, in the sense that the dog could be expected to attack without advance warning or apparent cause. Thus Miller's testimony could support an inference that pit bulls are known to be liable to attack human beings. . . .

Thus there is a basis from which the trier of fact could derive the two required elements of implied malice, namely existence of an objective risk and subjective awareness of that risk. Additionally, there is arguably some base and antisocial purpose involved in keeping the dog (1) because harboring a fighting dog is illegal and (2) because there is some evidence the dog was kept to guard an illegal stand of marijuana. Illegality of the underlying conduct is not an element of the charge, but may be relevant on the issue of subjective intent. . . .

We do not know the actual probability that a death could result from defendant's conduct in keeping the dog. Presumably that is a question of fact to be submitted to the court or jury upon appropriate instructions requiring that it find a high probability that death would result from the circumstances before it can convict of murder.

Defendant emphasizes the facts that Willy had never before attacked a human being and that he was kept chained on the premises. First, the fact that the dog was kept chained lessened little the risk which he posed, in view of the close proximity of very young children, the obvious risk of a child's wandering near, and indeed being attracted to a seemingly harmless pet, and the easy accessibility to his vicinity. The mere fact he was chained clearly cannot, under the circumstances of record, absolve the owner of blame. . . . Also, the fact that defendant took the precaution of restraining the dog is a fact which might show he knew the dog was dangerous. . . .

In jurisdictions where liability for a dog bite cannot be imposed on the owner unless he knew of the dog's viciousness, the fact that the dog has previously attacked a person is strong evidence of his viciousness but is not necessarily the only kind of evidence which may be used to show scienter. . . . It is said that "[e]ven in the absence of evidence that a dog misbehaved on other occasions, counsel may be able to establish that the owner of a vicious dog had knowledge of its propensities by introducing evidence of facts and circumstances from which an inference of knowledge arises. . . . [E]vidence that the dog was unusually large, that it was used as a watchdog, that its owner kept it chained or muzzled most of the time, and that there were 'Beware of Dog' signs on the premises, would all tend to establish that the owner had knowledge of the dog's viciousness. . . .

California has enacted a series of "dog bite" statutes establishing civil liability for attacks by owned dogs and also stating conditions under which such animals may be confiscated or destroyed. . . . This legislative choice reflects legislative acceptance of the same ideas expressed by Miller in his testimony regarding the higher degree of danger posed by such animals.

We conclude that it is for the jury to resolve the factual issues of probability of death and subjective mental state. There is sufficient evidence to justify trial for murder on an implied malice theory.

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Evidence of Negligent Keeping of a Mischievous Animal

Finally, defendant claims the Penal Code section 399 charge should have been dismissed because there is no evidence the animal was mischievous or was kept without ordinary care. Both are questions of fact and on both there is much evidence from which a jury might find the necessary elements of the offense. . . .

Webster's defines "mischievous" as something "productive of harm or injury" or "capable of causing or tending to cause annoyance, trouble, or minor injury or damage to others . . . ." . . . There is ample evidence that Willy possessed such characteristics, and some evidence that he may have been deliberately used as a guard dog to exploit those harm-producing capabilities. He was bred to kill other dogs and may have been used to guard a marijuana patch.

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There is sufficient evidence to require defendant to stand trial on the section 399 charge.

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DISPOSITION

The petition for writ of prohibition is denied.

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