California Court of Appeal Dec 26, 2014 No. D063608Unpublished
Filed 12/26/14 P. v. Cornelio CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063608
Plaintiff and Respondent,
v. (Super. Ct. No. SCD238691)
CARLA RAMIREZ CORNELIO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard S.
Whitney, Judge. Affirmed in part, reversed in part and remanded for resentencing.
John L. Dodd & Associates and John L. Dodd, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Steve Taylor Oetting, Tami Falkenstein Hennick, Deputy Attorneys
General for Plaintiff and Respondent.
A jury found Carla Ramirez Cornelio guilty of involuntary manslaughter (Pen.
Code,1 § 192, subd. (b); count one) and two counts of owning an animal that kills a
human being (§ 399, subd. (a); counts two and three).2 The court sentenced Cornelio to
four years in local custody: the four-year upper term for involuntary manslaughter and
stayed 16-month lower terms on the remaining counts. Cornelio appeals. She contends
of "aggravated, culpable, gross, or reckless conduct, which is such a departure from the
conduct of an ordinarily prudent person under the same circumstances as to demonstrate
an indifference to consequences or a disregard of human life." [Citation.] . . . .' (People
4 The ordinances are County of San Diego, Code of Regulatory Ordinances, sections 62.669(a) and 62.669.1(a). The former section states: "A dog's owner or custodian or a person who has control of a dog shall prevent the dog from being at large . . . ." The latter section states: "A dog's owner or custodian or other person having control of a dog shall exercise ordinary care to prevent the dog, while the dog is under the owner, custodian or other person's care, custody or control from . . . [a]ttacking, biting or otherwise causing injury to any person engaged in a lawful act." 17
v. Medlin (2009) 178 Cal.App.4th 1092, 1103 [(Medlin)]; see § 7, subd. (2).)"5 (People
v. Flores (2013) 216 Cal.App.4th 251, 259 (Flores).)
It is self-evident that a violation of section 399, subdivision (a) by keeping a
mischievous dog with criminal negligence will commonly constitute a violation of
section 192, subdivision (b) by the commission of the lawful act of keeping the dog, with
subdivision (b), and Cornelio's conviction under the latter section must be reversed.
III.
SECTION 399, SUBDIVISION (A)
A.
Substantial Evidence
Cornelio contends her two convictions of violating section 399, subdivision (a) are
unsupported by substantial evidence because there was no evidence she acted with
5 In Medlin, supra, 178 Cal.App.4th at page 1092, cited in Flores, supra, 216 Cal.App.4th at page 259, the People appealed after the defendants were found factually innocent of dependent adult abuse likely to produce great bodily injury or death (§ 368, subd. (b)(1)). (Medlin, supra, at p. 1094.) "Violation of section 368, subdivision (b)(1) requires proof of willful conduct that caused a dependent adult to suffer under circumstances likely to produce great bodily harm or death." (Medlin, supra, at p. 1102.) After stating that section 368, subdivision (b)(1) required "criminal negligence," the Medlin court defined that negligence as set forth above in the quotation in Flores. Flores also cited section 7, subdivision (2), which states: "The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: . . . [¶] . . . The words 'neglect,' 'negligence,' 'negligent,' and 'negligently' import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns." (Flores, supra, 216 Cal.App.4th at p. 259.)
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criminal negligence in keeping the pit bulls.6 She argues she and her family took
precautions to ensure the dogs stayed in the yard that were objectively and subjectively
reasonable.7
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a
limited one. ' "The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
6 In light of our conclusion that section 399, subdivision (a) preempts section 192, subdivision (b), we need not address Cornelio's contentions that her conviction under the latter section is unsupported by substantial evidence; the court erred in its instructions concerning involuntary manslaughter; and the court abused its discretion in imposing the four-year upper term for involuntary manslaughter. As there was only one error requiring reversal, we need not discuss Cornelio's contention that cumulative errors require reversal.
7 Specifically, Cornelio argues she believed the fence was secure; after the neighbor left the gap in the fence, Mr. Mendoza and the Cornelios closed it and that remedy had been effective for two years; there was no evidence the pit bulls were uncontrollable or had escaped after the December 2010 incident; and after that incident, the Cornelio family securely blocked the point of escape with plywood. These arguments are, in essence, a request that we reweigh the evidence. Cornelio also argues that Officer Hoefert's testimony that Cornelio told her that she had become aware of the hole in the fence about a month earlier was inconsistent with Mr. Mendoza's testimony that the hole had not been there two or three days earlier, and while Mr. Mendoza said the hole was about eight inches wide, Officer Hoefert did not say whether Cornelio specified the size of the hole. Cornelio's knowledge is all that matters; Mr. Mendoza's knowledge is irrelevant. Citing her own statements in the June 19, 2011, interview by Officer Hoefert, Cornelio claims she had been in Florida, where she had graduated from a nursing assistant program and visited family; she had returned to San Diego a week earlier; and she therefore would not have been able to build another fence. In the interview, Cornelio did not say when she went to Florida or how much time she spent there. Her statements during the interview do not support the claim in her brief that she "had spent considerable time" there. In any case, being away from home would not relieve her of her legal duty under section 399, subdivision (a). 19
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts on which
that determination depends. [Citation.] Thus, if the verdict is supported by substantial
evidence, we must accord due deference to the trier of fact and not substitute our
evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005)
37 Cal.4th 733, 738-739.)
Section 399, subdivision (a) states: "If any person owning or having custody or
control of a mischievous animal, knowing its propensities, willfully suffers it to go at
large, or keeps it without ordinary care, and the animal, while so at large, or while not
kept with ordinary care, kills any human being who has taken all the precautions that the
circumstances permitted, or which a reasonable person would ordinarily take in the same
situation, is guilty of a felony." " 'The basic purpose of section 399 is to protect people
against fatal attacks by "mischievous animals," where the victim is in no way at fault for
the attack. [Citation.] It does so by punishing those who know their animals are
"mischievous" but allow them to run free or keep them in a negligent manner.' [Citation.]
Section 399, '[i]n seeking to protect people from fatal attacks by "mischievous"
animals, . . . implies that a "mischievous" animal is one that may be dangerous to others
if allowed to run free or kept in a negligent manner. Knowledge of an animal's
"mischievous propensities" therefore puts an owner on notice of such danger or risk of
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harm, and his or her liability under the statute arises from the failure to act reasonably
with knowledge of this risk. Consequently, . . . "mischievous propensities" as used in the
statute means those propensities that may naturally pose a risk of harm or injury to
others.' " (Flores, supra, 216 Cal.App.4th at p. 259.)
Here, the court instructed the jury: "To prove that the defendant is guilty of
[violating section 399, subdivision (a)], 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; [¶] 3. The defendant failed to use ordinary care in keeping the
animal; [¶] 4. The animal killed Emako Mendoza while the defendant failed to use
ordinary care in keeping it . . . ." (CALCRIM No. 2950.)8 The court further instructed:
"Using ordinary care means using reasonable care to prevent reasonably foreseeable
harm to someone else. A person fails to use ordinary care if she does something that a
reasonably careful person would not do in the same situation or fails to do something that
a reasonably careful person would do in the same situation." (CALCRIM No. 2950.)
The definition of "ordinary care" in CALCRIM No. 2950 is a statement that
section 399 requires criminal negligence. (Flores, supra, 216 Cal.App.4th at p. 259.)
" 'Criminal negligence requires a gross violation of an existing duty of care. [Citations.]
There must be proof of "aggravated, culpable, gross, or reckless conduct, which is such a
8 The court did not instruct the jury on the statutory alternative to "keep[ing Estrella and Paloma] without ordinary care," i.e., "willfully suffer[ing them] to go at large." (§ 399, subd. (a).) 21
departure from the conduct of an ordinarily prudent person under the same circumstances
as to demonstrate an indifference to consequences or a disregard of human life."
[Citation.] The question is "whether a reasonable person in the defendant's position
would have appreciated the risk his or her conduct posed to human life." [Citation.] The
defendant's subjective awareness is irrelevant.' " (Flores, supra, 216 Cal.App.4th at p.
259.)
"Section 20 provides, 'In every crime or public offense there must exist a union, or
joint operation of act and intent, or criminal negligence.' " (People v. Valdez (2002) 27
Cal.4th 778, 782.) " 'Under the criminal negligence standard, knowledge of the risk is
determined by an objective test: "[I]f a reasonable person in defendant's position would
have been aware of the risk involved, then defendant is presumed to have had such an
awareness." ' " (People v. Linwood (2003) 105 Cal.App.4th 59, 71, quoting Williams v.
Garcetti (1993) 5 Cal.4th 561, 574.) "We realize that the ' "reasonably should have
known" formulation departs somewhat from the usual description of criminal negligence.'
[Citation.] . . . 'Criminal negligence . . . is a standard for determining when an act may
be punished under the penal law because it is such a departure from what would be the
conduct of an ordinarily prudent or careful person under the same circumstances.' "
(People v. Linwood, supra, at pp. 71-72.)
Here, there is substantial evidence of criminal negligence. Cornelio, who owned
and cared for Estrella and Paloma, knew they had a history of escaping from her back
yard. She knew that about six months earlier, in December 2010, they had escaped and
attacked Lopez, and believed the pit bulls had killed Lopez's puppy. Estrella behaved
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aggressively while impounded after that attack; this was noted on the receipt that
accompanied Estrella upon her release; and papers relating to the impound were later
found in Cornelio's purse. Cornelio knew a member of her family had taken steps to
close the pit bulls' December 2010 escape route. About a month before the June 2011
attack on Mrs. Mendoza, Cornelio learned of another potential escape route, a hole in the
fence, but believed the pit bulls would not escape by that route because the hole was
blocked by a post and boards. Shortly after the attack, Cornelio changed her mind; she
acknowledged that the pit bulls had escaped through the hole to attack Mrs. Mendoza.
Additionally, although Cornelio was responsible for feeding Paloma, Paloma was
undernourished, and a couple of days before the attack, was relying exclusively on
hunting mammals such as opossum to feed herself.
Any effort Cornelio made to keep the pit bulls in her yard paled in comparison to
the effort exerted to protect the Cornelio family from the pit bulls. In contrast to the post
and boards placed against the hole in the fence, the double-fenced enclosure attached to
the back of the house, whose purpose, according to Cornelio, was to prevent the pit bulls
from bothering Alba Cornelio, was extremely sturdy and secure.
As substantial evidence supports the conclusion Cornelio acted with criminal
negligence in keeping the pit bulls, we need not address Cornelio's contention that
CALCRIM No. 2950 is fatally defective because it permitted the jury to find her guilty of
violating section 399, subdivision (a) based on a finding of ordinary, rather than criminal,
negligence, in violation of her constitutional rights.
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B.
Multiple Violations of Section 399, Subdivision (a)
Cornelio contends because there was only one negligent act, failing to secure the
fence, there was substantial evidence of only one violation of section 399, subdivision
(a).
Cornelio was convicted not because she simply failed to maintain the fence, but
because she failed to take adequate measures to restrain the pit bulls. Such measures
might have included confining both pit bulls to one of the two enclosures within the yard,
tethering them or placing them in a kennel; or by using two different methods of restraint,
one for each dog. The fact that Cornelio chose to rely on the fence as the sole method of
containment for both pit bulls does not mean she committed only one offense. As
discussed above, she was on notice the fence was not sound and she was therefore
required to secure each of the two dogs by other means. She failed to secure either dog
and thus committed two violations of section 399, subdivision (a).
C.
Duty to Repair or Maintain the Fence And The Civil Code Section 841 Instruction
Alba Cornelio's counsel asked the court to instruct the jury pursuant to Civil Code
section 841. Cornelio's counsel did not object. Civil Code section 841, subdivision (a)
states: "Adjoining landowners shall share equally in the responsibility for maintaining
the boundaries and monuments between them." The court instructed the jury:
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"Coterminous owners are mutually bound equally to maintain: [¶] 1. The boundaries
and monuments between them; [¶] 2. The fences between them[.] [¶] Coterminous
means linked or having the same boundaries."
Cornelio contends there was no substantial evidence she had a duty to repair or
maintain the fence because the Cornelios did not own the property where they lived; Alba
Cornelio was the tenant, not Cornelio; and there was no evidence Cornelio had any legal
right to control the premises. Cornelio concludes the above instruction was
unconstitutional. She also argues that giving the instruction was error because Civil Code
section 841 concerns who is to pay for a fence and does not impose a duty to construct a
fence.
Cornelio misses the point. As noted above, her duty was not simply to maintain
the fence; she was required to prevent the pit bulls from killing Mrs. Mendoza. This
could have been accomplished by various means, such as confining the pit bulls to an
enclosure within the yard. Because Cornelio chose to allow the pit bulls to run freely in
the yard, she was required to ensure the fence was secure enough to contain them,
regardless of whether she would have had a duty to maintain the fence if she had not
owned the pit bulls. In any case, the instruction may have benefited Cornelio by pointing
out that Mrs. Mendoza had a duty to maintain the fence, which the jury might have
considered to be one of "the precautions that the circumstances permitted" (§ 399, subd.
(a)), a requirement for a conviction.
The court also instructed the jury that "[s]ome of these instructions may not apply,
depending on your findings about the facts of the case. Do not assume just because I give
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a particular instruction that I am suggesting anything about the facts." According to the
terms of the Civil Code section 841 instruction, if the jury found Cornelio was not a
landowner, it would not have found she had a duty to maintain the fence. In that case, the
instruction would have been merely irrelevant.
There was no error.
IV.
VIOLATION OF COUNTY ORDINANCES AS LESSER INCLUDED OFFENSES
Cornelio contends the court committed prejudicial error by failing to instruct on
the lesser included offenses set forth in County of San Diego, Code of Regulatory
Ordinances, sections 62.669(a) and 62.669.1(a). The former section states: "A dog's
owner or custodian or a person who has control of a dog shall prevent the dog from being
at large . . . ." The latter section states: "A dog's owner or custodian or other person
having control of a dog shall exercise ordinary care to prevent the dog, while the dog is
under the owner, custodian or other person's care, custody or control from . . .
[a]ttacking, biting or otherwise causing injury to any person engaged in a lawful act."
" '[A] trial court is not required to instruct the jury as to all lesser included
offenses, only those that "find substantial support in the evidence." [Citation.] In this
context, substantial evidence is evidence from which reasonable jurors could conclude
" 'that the lesser offense, but not the greater, was committed.' " ' " (People v. Elmore
(2014) 59 C4th 121, 153.)
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As Cornelio concedes in her reply brief, the ordinances here are not lesser
included offenses of section 399, subdivision (a) because the ordinances contain an
element not contained in section 399, subdivision (a): conduct committed only in the
County of San Diego. (People v. Moore (1983) 143 Cal.App.3d 1059, 1067.)
V.
ADMISSION OF EVIDENCE
A.
Photographs
On the first day of trial, the prosecutor sought to introduce into evidence seven
photographs of Mrs. Mendoza's injuries and one autopsy photograph. The prosecutor
argued the photographs taken at the crime scene would accompany Dr. Bongiovanni's
testimony; assist the jury in understanding the nature and extent of the injuries and the
necessary amputations, other surgeries and treatments Mrs. Mendoza underwent in the
six months before her death; and would show how dangerous the dogs were. The autopsy
photograph would assist the jury in understanding the testimony of the medical examiner
and show the ultimate state of Mrs. Mendoza's body. Cornelio moved in limine to
exclude the photographs, arguing they were cumulative, irrelevant and so gruesome as to
be more prejudicial than probative pursuant to Evidence Code section 352. The court
stated it was inclined to admit some of the photographs, but deferred making a ruling
until the next day. The next day, the court did not address the issue. Several days later,
the prosecutor moved to introduce the photographs into evidence. The court asked
27
defense counsel if she objected. Counsel said no. The court admitted the photographs.
Respondent argues that Cornelio has forfeited her right to object to the admission
of the photographs by failing to secure a final ruling. We disagree. "[T]he court's failure
to rule formally, after having reserved the ruling, constitute[s] an implied ruling against
the objection and in favor of admissibility." (People v. Flores (1979) 92 Cal.App.3d 461,
466.)
On the merits, Cornelio now contends the photographs were irrelevant to any
disputed issue because she offered to stipulate that the dogs had attacked Mrs. Mendoza,
resulting in her death; witnesses testified about the results of the attack; and Cornelio "did
not really even contest the . . . 'mischievous' element of the statute" or the pit bulls'
"dangerous propensities." Cornelio argues because she did not personally cause the
injuries, the photographs were not relevant to show intent, and there was no similarly
horrific incident that had occurred previously and of which she was aware. She claims
because the photographs were not relevant, they constituted inadmissible evidence of the
impact on the victims, the Mendoza family. She asserts that even if the photographs were
relevant, they were more prejudicial than probative and should have been excluded
pursuant to Evidence Code section 352, and admission of the photographs rendered the
trial fundamentally unfair.
" 'The admission of photographs of a victim lies within the broad discretion of the
trial court when a claim is made that they are unduly gruesome or inflammatory.
[Citations.] The court's exercise of that discretion will not be disturbed on appeal unless
28
the probative value of the photographs clearly is outweighed by their prejudicial effect.' "
(People v. Virgil (2011) 51 Cal.4th 1210, 1247-1248.) Here, there was no abuse of
discretion.
The photographs depicting the extent of Mrs. Mendoza's injuries were relevant.
Although Cornelio conceded the dog bites caused Mrs. Mendoza's death, in closing
argument Cornelio's attorney minimized the pit bulls' dangerousness. The photographs
were relevant to show the pit bulls were "mischievous" within the meaning of section
399, subdivision (a). Although there was testimony concerning the results of the attack,
the photographs illustrated those results in a way that words could not and brought the
testimony to life. "The defense's offer to stipulate . . . did not negate the relevance of the
photograph. 'The prosecutor " 'was not obliged to prove these details solely from the
testimony of live witnesses' [citation] or to accept antiseptic stipulations in lieu of
photographic evidence. '[T]he jury was entitled to see how the physical details of the
scene and the bod[ies] supported the prosecution theory . . . .' " [Citation.]' (People v.
Crittenden [1994] 9 Cal.4th [83,] 133; see also Old Chief v. United States (1997) 519
U.S. [172, 187], . . . [Conventional evidence, as contrasted with a stipulation, 'tells a
colorful story with descriptive richness . . . . This persuasive power of the concrete and
particular is often essential to the capacity of jurors to satisfy the obligations that the law
places on them.']; People v. Fierro (1991) 1 Cal.4th 173, 222-223 . . . , and cases cited
therein; People v. Edelbacher (1989) 47 Cal.3d 983, 1007 . . . ['The general rule is that
the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect
29
would be to deprive the state's case of its persuasiveness and forcefulness.'].)" (People v.
Mendoza after the amputations, was relevant to show the extreme medical measures
required in the attempt to preserve her life. The court did not abuse its discretion by
concluding that although the photographs depicting the trauma inflicted on Mrs. Mendoza
"are as bad as they get," the photographs' probative qualities outweighed any possible
prejudice. Admission of the photographs was not erroneous.
B.
Evidence That Estrella Had Harmed Her Puppies
Alba Cornelio made an out of court statement that Estrella did not want to nurse
Paloma and her litter mates and nipped at them; Alba saw bite marks on the puppies'
heads; and the next day the puppies were dead. After the third puppy died, Alba Cornelio
took care of the fourth puppy, Paloma. According to Cornelio's counsel, this happened
either three or six years before the events at issue here. Cornelio's counsel moved in
limine to exclude evidence Estrella had killed her puppies.9 The court granted the
motion, but said it was "willing to revisit it," "[i]f need be," "[b]ased upon the testimony,
of the evidence as it comes in."
Later, the prosecutor asked the court to reconsider its ruling. Cornelio's counsel
9 Cornelio does not point to any evidence that Estrella had killed her puppies aside from Alba Cornelio's statement.
30
objected. The court concluded it would allow the evidence "as long as it's limited
to . . . this is what [Alba Cornelio] told me." The court stated it would think about what
latitude to give the parties in arguing this evidence.
On direct examination, Hernandez testified that on June 25, 2013, Alba Cornelio
told her the following: "[Alba Cornelio] started noticing that Estrella didn't want to nurse
the puppies and that she would nip at the puppies. And as [Alba] would go out and feed
them and watch over them and take care of them, she started noticing that the puppies
were, in fact dying. [¶] And when she went outside and saw the puppies, she would
notice bite marks on their head. And about a day later, the dogs would be dead; the
puppies would be dead. She also told me that after three of them had died, she took the
last puppy, took it inside the house and fed it and nursed it herself, and that dog was later
Paloma." Hernandez was not cross-examined about this statement. In closing argument,
the prosecutor referred to the statement and said, "You have to think about what you
know about a dog who literally kills its puppies, what kind of notice that put Alba
Cornelio on. About the dog that she kept and the puppy that came from that aggressive
dog. Just one little thing starting very early in time, giving . . . some indication about
what these dog owners are about." Defense counsel did not object to his argument.
Alba Cornelio, not Cornelio, made the statement at issue, and the court expressly
instructed the jury: "You have heard evidence that both defendants made a statement out
of court. You may consider that evidence only against the defendant who made the
statement, not against any other defendant." (CALCRIM No. 305.) We presume the jury
followed this instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
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Cornelio contends the court did not exercise informed discretion because it was
confused about which litter was the subject of this evidence. During the discussion that
ensued when the prosecutor asked the court to reconsider its ruling, the prosecutor,
followed by Cornelio's counsel, also referred to Alba Cornelio's relinquishment of the
litter in existence at the time of the attack on Mrs. Mendoza. There is no indication the
court was confused about the two litters.
There was no error.
DISPOSITION
The conviction of involuntary manslaughter (Pen. Code, § 192, subd. (b); count
one) is reversed. The matter is remanded for resentencing. In all other respects, the
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 399, subdivision (a), which specifically governs owning an animal that kills a human being, preempts the general involuntary manslaughter statute under Penal Code section 192, subdivision (b).
Issues
Whether Penal Code section 399, subdivision (a) preempts Penal Code section 192, subdivision (b) under the Williamson rule.
Disposition. Affirmed in part, reversed in part and remanded for resentencing.
“It is self-evident that a violation of section 399, subdivision (a) by keeping a mischievous dog with criminal negligence will commonly constitute a violation of section 192, subdivision (b)”
“Thus, section 399, subdivision (a) preempts section 192, subdivision (b), and Cornelio's conviction under the latter section must be reversed.”