California Court of Appeal Aug 6, 2013 No. E053751Unpublished
Filed 8/6/13 P. v. Gonzalez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053751
v. (Super.Ct.No. FVA1000466)
JOSE A. LOPEZ GONZALEZ et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,
Judge. Affirmed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant
and Appellant Jose A. Lopez Gonzalez.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant Judith Mendez Lopez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
1
This case involves defendants and appellants, Jose A. Lopez Gonzalez
(Gonzalez) and his wife, Judith Mendez Lopez (Lopez). A jury found Gonzalez and
Lopez (collectively “defendants”) guilty of seven counts each of knowingly owning a
mischievous animal that caused serious bodily injury to a human being. (Pen. Code,
Lopez‟s argument focuses on the multiple punishment protection of the Double
Jeopardy Clause.
As explained ante, in our section 654 discussion, Lopez committed seven
different crimes. Lopez harbored four dogs that she knew to have propensities for
vicious behavior. Lopez did not properly contain the dogs, and the dogs were able to
roam the neighborhood. One of the dogs inflicted a serious injury on Princess, two of
the dogs inflicted serious injuries on Hector, and four of the dogs inflicted serious
injuries on Destiny. By harboring four dogs with vicious propensities and not properly
containing them so that they came into contact with three victims, Lopez is responsible
for the individual dogs‟ attacks on the individual victims; thus, one conviction for
Princess, two convictions for Hector, and four convictions for Destiny—seven separate
crimes.
17
Lopez argues that the gravamen of section 399, subdivision (b) is permitting an
animal to escape confinement and injure a person. Therefore, Lopez reasons, “[I]f one
dog escapes and bites five people, there still is only one negligent act, so there is only
one offense.” Lopez asserts the one offense is failure to maintain a fence. Lopez
appears focused on the “escape confinement” portion of her point, as opposed to the
“injure a person” portion of the assertion.
Lopez has provided this court with the legislative history for section 399.3
(Assem. Bill No. 1709 (2001-2002 Reg. Sess.).) However, the history provided by
Lopez is not persuasive because it only concerns an amendment to the statute creating
liability for people who have “custody and control [of] the animal,” in addition to the
owners of the animal. Since the ownership versus custody element is not in dispute
here, the legislative history for this amendment is of little assistance.
Moreover, there is no need to analyze the legislative history of the statute,
because the plain language of the statute is clear. (People v. Townsend (1998) 62
Cal.App.4th 1390, 1395 [If there is no ambiguity then “there is no need to resort to
extrinsic indicia of legislative intent, such as legislative history”].) The gravamen of the
offense is set forth in the statute: a vicious dog bites a person. If that act takes place
under the conditions of (1) the owner having knowledge of the dog‟s vicious tendencies,
and (2) the owner failing to have confined the animal, then a felony has occurred.
3Lopez included the legislative history documents in a request for judicial notice. We grant Lopez‟s request for judicial notice. (Evid. Code, § 452, subd. (c).)
18
Lopez‟s argument that the gravamen of the offense is failure to confine a dog, is
not persuasive because there is no offense unless a bite occurs. For example, if a
vicious dog escapes confinement and runs around a neighborhood while the dog‟s
owner is fully aware of what is happening, the person would not be guilty under section
399 because a bite has not taken place. It is when the dog bites a person that the critical
act has occurred. The law then looks to the conditions under which the bite occurred to
determine if a crime took place.
Lopez‟s argument seems to reject any idea that she is responsible for the acts of
her dogs, and asserts she can only be liable for her own failure of maintaining the fence.
This reasoning is flawed because the plain language of the statute places liability on
Lopez for the acts of her dogs. Since the seven bites correspond to a unique dog biting
a unique victim there has not been multiple punishments for a single act. Accordingly,
the multiple punishment provision of the Double Jeopardy Clause is not applicable.
Lopez asserts the actus reus of section 399 is failure to maintain a fence because
the legislative history refers to the offense as one involving criminal negligence. Lopez
reasons, “It is the negligence of the defendant which is being punished, not the fact the
dog escaped, nor the fact the dog bit someone.” Assuming Lopez is correct and the
actus reus is a negligent act on defendant‟s part, the reasoning still fails. If a person
shoots a gun and a single bullet strikes two people, the shooter could be punished for
two offenses. Just because there is a single act does not mean there is a single crime. In
this case, Lopez‟s negligence allowed four dogs to run loose, and those four dogs
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committed seven unique bites on three victims. Thus, Lopez is responsible for seven
offenses.
E. CALCRIM NO. 2950
Defendants contend the trial court erred in instructing the jury on the knowledge
element of the offense because it changed the element and lessened the prosecution‟s
burden of proof. (CALCRIM No. 2950.) We disagree.4
“We review de novo whether jury instructions state the law correctly.
[Citation.]” (People v. Jackson (2010) 190 Cal.App.4th 918, 923.) “Review of the
adequacy of instructions is based on whether the trial court „fully and fairly instructed
on the applicable law.‟ [Citation.] „“In determining whether error has been committed
in giving or not giving jury instructions, we must consider the instructions as a whole
[and] assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.” [Citation.]‟ [Citation.] „Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.‟ [Citation.]” (People v. Ramos
(2008) 163 Cal.App.4th 1082, 1088.)
In regard to knowledge, section 399, subdivision (b), provides: “If any person
owning or having custody or control of a mischievous animal, knowing its propensities,
willfully suffers it to go at large . . . .” A “mischievous animal” is a dangerous creature
4 The People contend defendants forfeited this alleged error by failing to raise it in the trial court. For the sake of perhaps lessening a need for an ineffective assistance of counsel argument, we choose to address the merits of defendants‟ contention.
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that “must be confined lest it injure others.” (Sea Horse Ranch, Inc. v. Superior Court
(1994) 24 Cal.App.4th 446, 460.) The trial court instructed the jury with CALCRIM
No. 2950 as follows: “To prove that a defendant is guilty of this crime, the People must
prove that: [¶] 1. The defendant owned or had custody or control of a dangerous
animal; [¶] 2. The defendant knew that the animal was dangerous . . . .”
The trial court‟s instruction is an accurate reflection of the law. The trial court
explained the evidence needed to reflect defendants had knowledge of the dog being
dangerous. The court omitted the word “propensities”; however, a reasonable juror
would understand that in order for the prosecutor to prove dangerousness there must be
evidence of the dogs‟ behavior. It would be difficult to prove “dangerous” in any other
manner. Thus, “dangerous behavior” or “dangerous propensities” are implied in the
instruction. As a result, we conclude the trial court did not err.
Gonzalez contends the trial court erred because it should have instructed the jury
that the crime requires defendants to “have knowledge that the individual behavior of
the animal demonstrates viciousness, a reasonable juror could have understood this to
mean that [Gonzalez‟s] knowledge concerning characteristics of the Pit Bull breed in
general meant he had actual knowledge that his dogs were dangerous, even if the juror
was unconvinced that [Gonzalez] actually knew of his dogs‟ individual propensity for
dangerousness.”
We do not find Gonzalez‟s argument to be persuasive because the purpose of the
instruction was to explain what the prosecutor needed to prove. The instruction reflects
that the prosecutor needed to prove Gonzalez owned “a dangerous animal” and “knew
21
that the animal was dangerous.” The only reasonable interpretation of this instruction is
that the animal owned by Gonzalez had to be dangerous—not a breed in general. If the
jury were instructed to consider whether the breed were dangerous then the instruction
would have read “owned a dangerous breed of animal” or “owned a dangerous type of
animal” and “knew the breed was dangerous.” However, that is not how this instruction
read. The instruction discusses the specific animal owned by Gonzalez. Accordingly,
we find Gonzalez‟s argument to be unpersuasive.
Lopez contends the jury instruction was problematic because it “informed the
jury it need only find the owner „knew that the animal was dangerous.‟ [Citation.]
Which animal? One out of four? All four? The specific dogs which bit a specific
child? The mastiff which did not bite anyone?” The only reasonable reading of the
instruction is that “the animal” in the instruction corresponds to the dog in the individual
count. So, Count 1 involves the dog that bit Princess, Count 2 involves the first dog that
bit Hector, Count 3 involves the second dog that bit Hector, and so on. A plain reading
of the instruction is clear on this point, as it would be unreasonable to read the
instruction as reflecting the prosecutor could prove Lopez owned Dog-A, but Dog-B
was dangerous, and Dog-C bit a person.
F. UNANIMITY
Lopez contends the trial court erred by not instructing the jury on the law of
unanimity. Specifically, Lopez asserts the trial court should have sua sponte instructed
the jury that it could only find defendants guilty of a particular count “if the jury
22
unanimously agreed the defendants had prior knowledge of the dangerousness of a
specific dog which bit a specific child who was the subject of that count.” We disagree.
“„It is established that some assurance of unanimity is required where the
evidence shows that the defendant has committed two or more similar acts, each of
which is a separately chargeable offense, but the information charges fewer offenses
than the evidence shows. [Citation.] [A unanimity] instruction is intended to eliminate
the danger that the defendant will be convicted even though there is no single offense
which all the jurors agree the defendant committed . . . .‟” (People v. Milosavljevic
(2010) 183 Cal.App.4th 640, 645.)
The factual basis for the charges in this case are unique: Count 1 involves a dog
biting Princess. Count 2 involves one dog biting Hector. Count 3 involves a second
dog biting Hector. Counts 4, 5, 6, and 7 concern the four separate dogs each biting
Destiny. There is only one possible offense in each count. There is no risk of two acts
or similar acts being confused because all the possible acts were charged separately.
Accordingly, we conclude the trial court did not err.
Lopez contends the trial court erred because “[h]alf [of] the jurors may have
believed [defendants] had reason to know dog A was dangerous, but not dog B. That
same half [of] the jurors may have believed dog B was the dog which bit a child, not
dog A.” As explained ante, this argument is not persuasive because, given the
instruction, it would be unreasonable to read the instruction related to the offense as
reflecting the prosecutor could prove Lopez owned Dog-A, but Dog-B was dangerous,
and Dog-C bit a person. Thus, there was not a need for the unanimity instruction.
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DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.
24
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the defendants' convictions for owning mischievous animals that caused serious bodily injury, and that the trial court properly imposed multiple sentences because each dog's attack on each victim constituted a separate offense.
Issues
Whether substantial evidence supports the finding that defendants knew their dogs had vicious propensities.
Whether substantial evidence supports four separate convictions for the injuries sustained by one victim.
Whether the trial court erred by failing to stay multiple sentences under Penal Code section 654.
Whether multiple convictions violate the prohibition against double jeopardy.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The crime set forth in section 399, subdivision (b), is not focused on home maintenance. Rather, the plain language of the statute reflects a crime is committed when (1) a dog causes serious bodily injury to a person”