Defendant's dogs escaped from Defendant's yard and attacked and killed a six-year-old boy. The trial court convicted Defendant of owning a mischievous animal that causes death and involuntary manslaughter. The Court of Appeals reversed and remanded the trial court's conviction for owning a mischievous animal that causes death due to erroneous jury instructions.
Defendant Charles Dean Schneider was convicted by a jury of violating Penal Code section 399, subdivision (a) [FN1] (count I--owning a mischievous animal that causes death) and section 192, subdivision (b) (count II--involuntary manslaughter), based on an attack on a child by two of defendant's dogs, resulting in the child's death. Imposition of sentence was suspended and defendant was placed on probation for a period of five years with various terms and conditions.
FN1. Undesignated statutory references are to the Penal Code.
Defendant appeals, raising claims regarding the admissibility of evidence, the sufficiency of the evidence and the adequacy of jury instructions. Defendant also argues that prosecution under section 192, subdivision (b), is preempted by section 399. Finally, defendant maintains that the trial court erred by not granting his motion for a new trial and that his trial was "fundamentally unfair" as a result of the cumulative effect of the errors he asserts. We find merit only in defendant's claim that the instructions given to the jury concerning section 399 (count I) were erroneous. Accordingly, we shall reverse the conviction on count I, remand for further proceedings, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant owned three dogs: an adult Rottweiler and two younger dogs (the two dogs) that were a Rottweiler-pug-dachshund mix. The two dogs escaped regularly under holes in the chain-link fence separating defendant's yard from that of his neighbor. In February 2002, the two dogs brutally attacked Genoe Novach, a six-year-old child who was playing in the neighbor's backyard. The child died from injuries he sustained during the attack.
There was no dispute that defendant's fence had holes in it, that the two dogs were able to get out through the holes, and that defendant was aware of this, although defendant contested the extent to which the fence was in disrepair and the frequency in which the dogs got out. However, according to a deputy sheriff dispatched to the scene on the day of the incident, the fence "appeared to be in very bad condition." And according to neighbors, the two dogs got out frequently.
Defendant was also aware that children played in his neighbor's yard. Although defendant made attempts to repair the fence, the dogs continued to get out. Defendant testified he did not make other, more costly repairs because he was on a fixed budget. According to defendant, he kept the dogs in kennels in his backyard "most of the time," but he wanted them to be able to run loose in the yard some of the time.
Witnesses testified that, on more than one occasion when the two dogs had gotten out, they growled, snarled, bared their teeth and acted aggressively toward people in the neighborhood. A power company employee testified that the dogs would jump against the fence, growl and bare their teeth when he checked the meter each month at defendant's residence. According to the victim's father, who lived across the street from defendant, the two dogs lunged at him when they were loose, and on one occasion when he was on his bicycle, they chased him and tried to bite his leg.
The victim's father "yell[ed] over" to defendant "a couple of times" about his dogs getting out and being "mean." Defendant "[m]ostly just ignored" him. The neighbor in whose yard the attack occurred told defendant at least twice that the dogs were running loose in her yard and had growled at her. According to the neighbor, defendant did not give "much of a response," although he checked the fence following the first report. There was no further evidence of reports to defendant about aggressive behavior by the two dogs.
An expert on animal behavior testified that, depending on how they are raised, Rottweilers as a breed can be "push[ed] ... towards aggressive extremes much, much more readily ... than the vast majority of other dog breeds." Without training, early socialization and regular contact with people, such dogs are "much more prone to aggressive responding" and being "out of control." The fact that the two dogs, here, had formed a pack could have exaggerated any inherent tendency to respond aggressively. Based on the two dogs' genetic makeup, lack of training, and the manner in which they were raised and maintained, the expert opined that they had a strong propensity toward aggressive behavioral responses.
Defendant admitted to an investigator that he was knowledgeable about the history of Rottweilers and that he knew the breed was aggressive by nature. He also told the investigator he was aware that dogs "feed off each other ... when they are running in packs." Defendant acknowledged that he had not trained the two dogs and that they had little human contact. However, he denied that he had ever seen the two dogs act aggressively toward people or that he had received any complaints about them. According to defendant, "it was totally out of character of anything [he] ever knew about th[e] dogs" that they had attacked the victim.
Several witnesses testified that they had contact with the two dogs at defendant's house, and that the dogs did not exhibit aggressive behavior. One witness testified that, on two occasions, he saw the two dogs get out while children were playing in the street and the dogs did not behave aggressively.
Defendant contends the instructions given to the jury regarding section 399 inadequately defined "mischievous." We agree.
" 'In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction.' " (People v. Woodward (2004) 116 Cal.App.4th 821, 834, 10 Cal.Rptr.3d 779).
Accordingly, we begin with the relevant law. Section 399, subdivision (a), provides: "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."
Two California cases have addressed the meaning of the word "mischievous" as used in section 399. In People v. Berry (1991) 1 Cal.App.4th 778, 781-782, 2 Cal.Rptr.2d 416 (Berry ), involving a pit bull that killed a child, the trial court instructed the jury that "mischievous" meant "something 'productive of harm or injury' or something 'capable of causing or tending to cause annoyance, trouble, or minor injury or damage to others' " (id. at pp. 785-786, 2 Cal.Rptr.2d 416). The appellate court concluded that the instruction was erroneous because "propensities that may merely be bothersome or annoying but are not inherently or naturally dangerous to others" are not mischievous under the statute. (Id. at p. 786, 2 Cal.Rptr.2d 416.) The court held that "a 'mischievous' animal is one that may be dangerous to others if allowed to run free or kept in a negligent manner," and that " 'mischievous propensities' as used in the statute means those propensities that may naturally pose a risk of harm or injury to others." (Ibid.)
In Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 450, 30 Cal.Rptr.2d 681 (Sea Horse Ranch ), a horse escaped from the defendant corporation's ranch, ran onto a highway and was struck by a car, resulting in the death of the driver. There had been a history of horses escaping from the ranch, and the fencing on the corral from which the horse escaped was poorly maintained. (Id. at pp. 450-451, 30 Cal.Rptr.2d 681.) The appellate court concluded that a "benign animal such as a horse or sheep or cow" is not "mischievous" "just because it escapes, and without consideration of its behavioral propensities." (Id. at p. 460, 30 Cal.Rptr.2d 681.) The court held that, while "[w]ild animals are considered inherently dangerous[,] a domesticated animal is only classified as mischievous if its individual behavior demonstrates viciousness." (Ibid.) Although the court recognized that the animal involved in Berry was not as "benign [a] member of the animal kingdom" (ibid.) as other domesticated animals, the court also cited with approval a Louisiana case that listed dogs among the domesticated animals that " 'are regarded as inherently safe.'" (Ibid., quoting Rolen v. Maryland Cas. Co. (La.Ct.App.1970) 240 So.2d 42, 44.)
Consistent with Berry, and as requested by defendant, the trial court here instructed the jury as follows: "The word 'mischievous' ... means having a propensity that may naturally pose a risk of harm or injury to others, and not simply a propensity that may be annoying or bothersome to others." In response to a later question by the jury, the trial court also instructed them that a "propensity" is " 'a natural inclination or a tendency.' " The trial court did not instruct the jury that, when a domesticated animal is involved, knowledge of mischievousness propensities must be based on the individual behavior of the animal. (Sea Horse Ranch, supra, 24 Cal.App.4th at p. 460, 30 Cal.Rptr.2d 681.)Defendant contends "the jury was given too broad a definition of the word 'mischievous' " because the "instruction did not adequately convey the magnitude of the risk encompassed in the word." He argues that, to constitute a violation of the statute, the animal must have a history of injuring people and the owner must have knowledge "about the specific animal."
We do not agree with defendant that a domesticated animal must have a history of injuring people to be found mischievous under section 399. All that is required is that the animal have "behavioral propensities" that indicate it " 'may be dangerous to others if allowed to run free.' " (Sea Horse Ranch, supra, 24 Cal.App.4th at p. 460, 30 Cal.Rptr.2d 681.) It is not difficult to conceive of circumstances in which an owner has knowledge of a dog's "mischievous" propensities even though the animal has no history of injuring anyone. Such was the situation in Berry, supra, 1 Cal.App.4th 778, 2 Cal.Rptr.2d 416. Accordingly, when an animal has such propensities and the owner of the animal is aware of this, the owner is not exempt from exercising ordinary care to prevent harm to others merely because the animal has not previously injured anyone.
On the other hand, we agree that the instructions in this case did not properly convey that, when a domesticated animal is involved, a defendant must have knowledge of that animal's individual behavior indicating mischievousness. Here, the jury was instructed that the offense was established if defendant knew the two dogs had a "natural inclination or a tendency" that might pose a risk of harm to others. A reasonable juror could have understood this to mean that defendant's knowledge concerning characteristics of the Rottweiler breed was sufficient, even if the jury was unconvinced that defendant knew of previous behavior by the two dogs indicating they might pose a danger if allowed to run loose. The failure to instruct the jury that a domesticated animal's individual behavior must have demonstrated mischievousness was error. [FN2]
FN2. CALJIC No. 12.97, which instructs on the elements of section 399, was added after the trial in this case and includes the following language: "Wild animals are inherently dangerous. A domesticated animal is only deemed to be 'mischievous' if its individual behavior demonstrates viciousness." (CALJIC No. 12.97 (7th ed.2003).)
"The misdescription or omission of an element of an offense 'ordinarily requires reversal of a conviction unless the error was harmless.' " (People v. Singh (2004) 119 Cal.App.4th 905, 913, 14 Cal.Rptr.3d 769 (Singh ); People v. Salas (2004) 119 Cal.App.4th 805, 831-832, 836, 14 Cal.Rptr.3d 689.) In evaluating whether an error is harmless, we examine "whether the evidence is ' "of such compelling force as to show beyond a reasonable doubt" that the erroneous instruction "must have made no difference in reaching the verdict obtained." ' " (People v. Maurer (1995) 32 Cal.App.4th 1121, 1129, 38 Cal.Rptr.2d 335 (Maurer ).) Applying this standard here, we find the error cannot be deemed harmless.
At trial, an expert on animal behavior testified at some length about the natural inclinations of the Rottweiler breed. According to the expert, "on the genetics alone," the Rottweiler breed has "more inherent tendencies towards progressive behavioral responding"--natural characteristics that, combined with other factors, could "easily make a dog like this more likely to become vicious or mean." In addition, there was evidence that defendant was well versed on the history of the Rottweiler breed and that he knew the breed was aggressive "by nature." Such evidence suggests that, because the two dogs were part Rottweiler, they had a "natural inclination or tendency" to be aggressive.
Furthermore, the evidence was not overwhelming that defendant knew of individual behavior by the two dogs that might be dangerous to others. The only direct evidence to support this was the testimony of two neighbors, who had informed defendant that the two dogs growled or were "mean" when they escaped from his yard. Defendant and numerous other witnesses testified that they had never seen the two dogs act aggressively in defendant's yard. Thus, while there was undisputed evidence about the aggressive natural tendencies of the Rottweiler breed, the direct evidence concerning defendant's knowledge of individual behavior by the two dogs in this regard was neither extensive nor uncontradicted.
Based on the instructions, the jury could have believed that, regardless of whether defendant was aware of any individual behavior by the two dogs indicating they might pose a danger to others, his knowledge of their breed tendencies was sufficient to constitute that element of the offense. That the jury struggled with this issue is most compellingly illustrated by the questions they submitted to the trial court during deliberations. The jury asked about the meaning and application of the terms "mischievous" and "propensity," and sought clarification on the element of the offense requiring that a defendant "knew the animal was mischievous ." The only additional clarification provided to the jury was that the term "propensity" means " 'a natural inclination or a tendency.' " The additional instruction reinforced the erroneous impression that defendant's knowledge of the natural tendencies of the Rottweiler breed was sufficient.
The People argue the instructional error was "invited or waived" because defendant submitted the instruction to the trial court. However, an appellate court "may ... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§1259.) And "[f]or the doctrine of invited error to apply, it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act simply out of ignorance or mistake. [Citations.] ... This is because important rights of the accused are at stake, and it is the trial court's duty fully to instruct the jury." (Maurer, supra, 32 Cal.App.4th at pp. 1127-1128, 38 Cal.Rptr.2d 335.)
We discern no tactical purpose on defendant's part for submitting the erroneous instruction. To the contrary, his attorney's arguments to the jury focused on whether there was evidence that defendant knew the two dogs were dangerous. We conclude defendant did not invite the error.
Based on our review of the evidence, we cannot say the erroneous instruction " ' "must have made no difference in reaching the verdict obtained." ' " (Maurer, supra, 32 Cal.App.4th at p. 1129, 38 Cal.Rptr.2d 335.) The error requires reversal of defendant's conviction for violation of section 399, subdivision (a), and remand for retrial on that charge.
Because a retrial of defendant is not foreclosed by our conclusion that instructional error occurred, we also address defendant's claim that there was insufficient evidence he knew his dogs were "mischievous" for purposes of section 399, subdivision (a). We conclude there was sufficient evidence to support the conviction.
"In reviewing the sufficiency of the evidence, we 'draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.' " (Singh, supra, 119 Cal.App.4th at p. 911, 14 Cal.Rptr.3d 769.) "If the answer is affirmative, the possibility that the trier of fact might reasonably have reached a different conclusion does not warrant reversal." (People v. Taylor (2004) 119 Cal.App.4th 628, 639, 14 Cal.Rptr.3d 550.)
One way to establish the existence of a fact "is to introduce evidence tending to show an opponent's denial of the existence of the fact is to be disbelieved, that is, evidence challenging the credibility of his denial." (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1840, 41 Cal.Rptr.2d 192 (Donchin ).) "This ... form of proof becomes especially important when the 'fact' at issue is a party's state of mind--whether it is the party's psychological condition, attitudes, motives, or as in this case, his knowledge." (Ibid.; see People v. Mendoza (1987) 192 Cal.App.3d 667, 673, 238 Cal.Rptr. 1 ["False statements which 'are apparently motivated by fear of detection, or which ... suggest there is no honest explanation for the incriminating circumstances' may be used as evidence of the accused's guilt"].
Here, several witnesses testified that the two dogs exhibited aggressive behavior--including baring their teeth, lunging, growling and attempting to bite--that indicated the dogs might pose a danger to others if not restrained. According to a power company employee, the dogs, while confined in the yard, jumped against the fence, growled and bared their teeth when he checked the meter at defendant's residence. According to an animal control officer, the two dogs demonstrated increasing aggressiveness after they were impounded for a period of time and began to view their kennel as their territory. Two of defendant's neighbors testified they told him more than once that the two dogs had exhibited aggressive behavior while loose.
An expert opined that, based on the two dogs' breed, lack of training, and how they were raised and maintained, they had a strong propensity toward aggressive behavioral responses. He testified that if a dog is aggressive in a particular situation, the dog "becomes pretty consistent and regular" in displaying such behavior in the same context and with the same stimuli.
Despite substantial evidence that the two dogs repeatedly exhibited behavior indicating they might be dangerous, and evidence that their breeding and upbringing made them particularly prone to such behavior, defendant testified he had never observed them to display any aggressive behavior, not even so much as a growl. And despite testimony by two neighbors that they told defendant the two dogs were exhibiting behavior that was consistent with aggressive tendencies, defendant denied receiving any complaints about the dogs.
Donchin, supra, 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192 involves strikingly similar facts, albeit in a civil context. In that case, the plaintiff brought suit against a landlord after she was attacked by his tenant's two Rottweilers. Initially, the landlord denied knowledge that the dogs were living in the building. Eventually, he maintained that he was unaware of the dogs' vicious propensities. In response to a summary judgment motion, the plaintiff submitted declarations from a neighbor, a parcel post worker and an animal behaviorist. According to the neighbor, "the dogs frequently ran loose around the neighborhood, lunging towards both people and other dogs." (Id. at p. 1836, 41 Cal.Rptr.2d 192.) The parcel post worker described that "every time he entered [the dogs'] area they would 'growl and show their teeth, ram the wood fence, attempt to jump the fence and appeared extremely ferocious.' " (Id. at p. 1843, 41 Cal.Rptr.2d 192.) Based on various reports of the dogs' behavior, the animal behaviorist opined it was unlikely the landlord would have been unaware of the dogs' vicious propensities. (Id. at p. 1844, 41 Cal.Rptr.2d 192.) The appellate court reversed summary judgment in favor of the landlord, noting that, "[h]ad a jury chosen to disbelieve [the landlord's] denial of knowledge and thus returned a verdict in [the plaintiff's] favor based on the evidence before the trial court on this summary judgment motion, we would have concluded substantial evidence supported the jury's credibility judgment." (Id. at p. 1845, 41 Cal.Rptr.2d 192.)
Similarly, if the jury here found it implausible that defendant had never observed or been told of any behavior by the two dogs indicating aggressiveness, they reasonably could have inferred the opposite from such testimony, i.e., that he knew the two dogs had dangerous behavioral propensities. Defendant contends the evidence established only that he knew his dogs "roamed the neighborhood." Contrary to this claim, there was substantial evidence from which a jury reasonably could infer that defendant knew the two dogs had mischievous propensities.
Defendant contends the trial court's instruction to the jury on involuntary manslaughter removed an element of the offense from the jury's determination. We disagree.
Involuntary manslaughter is defined, in relevant part, as "the unlawful killing of a human being without malice" that occurs "in the commission of an unlawful act, not amounting to [a] felony." (§ 192, subd. (b).) Our courts have long imposed the additional requirement that the unlawful act must be "dangerous to human life or safety under the circumstances of its commission" and must " ' "be committed with criminal intent." ' " (People v. Cox (2000) 23 Cal.4th 665, 675, 97 Cal.Rptr.2d 647, 2 P.3d 1189 (Cox ); see People v. Wells (1996) 12 Cal.4th 979, 986, 50 Cal.Rptr.2d 699, 911 P.2d 1374 (Wells ).)
It is improper to instruct a jury that a specified misdemeanor is an inherently dangerous act in the abstract because this "remove[s] from the jury's determination the question of the dangerousness of the predicate [unlawful act] under the circumstances of its commission...." (Cox, supra, 23 Cal.4th at p. 676, 97 Cal.Rptr.2d 647, 2 P.3d 1189; see Wells, supra, 12 Cal.4th at p. 989, 50 Cal.Rptr.2d 699, 911 P.2d 1374.) "The inherent or abstract nature of a misdemeanor which underlies an involuntary manslaughter charge is not dispositive." (Wells, supra, at p. 988, 50 Cal.Rptr.2d 699, 911 P.2d 1374.)
Here, the trial court instructed the jury that, for purposes of involuntary manslaughter, a killing is unlawful "if it occurred ... during the commission of an unlawful act which is dangerous to human life under the circumstances of its commission." (CALJIC No. 8.45 (6th ed.2001 rev.).) In addition, the jury was instructed that "[t]he commission of an unlawful act, without due caution and circumspection, would necessarily be an act that was dangerous to human life in its commission." (Ibid.)
Defendant contends this last instruction "t[old] the jury that all unlawful acts performed without caution are necessarily 'dangerous to life,' [thereby] remov[ing] an element of the offense from the jury's consideration...." However, defendant disregards the fact that, immediately following this instruction, the jury was told that "without due caution and circumspection" refers to "a negligent act which is aggravated, reckless and flagrant, and which is such a departure from what would be the conduct of an ordinarily careful, prudent person under the same circumstances as to be in disregard for human life, or an indifference to the consequences of such acts." (CALJIC No. 8.46 (6th ed.1996), italics added.)
Thus, the jury was instructed that the unlawful act must reflect a level of negligence that, under the circumstances, demonstrated a disregard for human life or indifference to the consequences. There is no substantive difference between this definition of "due caution and circumspection" and the requirement that the unlawful act be dangerous to human life under the circumstances of its commission. Thus, contrary to defendant's contention, the issue was not removed from the jury's determination.
Nor did the instruction remove the question of foreseeability from jury consideration, another claim urged by defendant. To the contrary, the jury was instructed as follows: "The facts must be such that the consequences of the negligent act or acts could reasonably have been foreseen. It must appear that the death was not the result of inattention, ... mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act." (CALJIC No. 8.46, supra, italics added.)
"In order to prevail on a claim that the jury instructions are misleading, the claimant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. [Citation.] ' " 'The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole .' " ' " (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147, 89 Cal.Rptr.2d 28.)
Defendant suggests no basis for concluding that the jury misunderstood the instructions as a whole. We conclude his objections to the involuntary manslaughter instruction are meritless.
Defendant argues there was insufficient evidence of criminal negligence to support his conviction for involuntary manslaughter because the evidence did not establish that "he [knew] or ha[d] reason to know that when [the two dogs] got out they posed a danger to human life." Again, we disagree.
"Involuntary manslaughter contemplates 'negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life [or] danger to human life or to constitute indifference to the consequences of such acts....' [Citation.] [¶] Such criminal negligence is of a higher order of culpability than ordinary civil negligence [citation] and is measured objectively: if a reasonable person would have been aware of the risk, the defendant is presumed to have had that awareness." (Sea Horse Ranch, supra, 24 Cal.App.4th at p. 454, 30 Cal.Rptr.2d 681.)
Here, the "unlawful act" that defendant was alleged to have violated was Tehama County Code section 7.25.050, which states: "No person shall permit or allow any dog to stray from private property owned by the owner of such dog, or from private property to which such owner has a right of possession."
The evidence established that, on the date of the offense, defendant's fence was "in very bad condition," with seven holes of various sizes along the ground. Defendant lived in a residential neighborhood where children lived and he knew that children played in his neighbor's yard. He also knew that the two dogs could and did escape from his yard under the fence. He was aware that dogs are more aggressive in packs and that the Rottweiler breed is aggressive by nature. Neighbors testified they had observed the two dogs engage in aggressive behavior while loose, and they reported to defendant that the two dogs growled and were mean when they got out. Yet defendant did not make repairs to the fence that could have prevented the two dogs from escaping and chose not to keep them in kennels he had in his yard.
Under the circumstances, the evidence of defendant's failure to maintain the fence or otherwise restrain the two dogs from wandering loose in the neighborhood, and his indifference to the reasonable concerns of his neighbors, supports the jury's finding that he acted with aggravated, reckless and gross negligence in allowing the two dogs to stray from his property. And, based on the reports by neighbors of aggressive behavior by the two dogs and defendant's knowledge of the genetic tendencies of Rottweilers, the jury was entitled to find that a reasonable person would have been aware of the risks posed by these circumstances.
Sea Horse Ranch, supra, 24 Cal.App.4th 446, 30 Cal.Rptr.2d 681, is analogous to the circumstances here. As previously discussed, that case involved a horse that escaped from the defendant corporation's ranch and was struck by a car on a nearby highway, resulting in the death of the driver. Based on the "substantial history of horses escaping" from the ranch and "the condition of the fence and its proximity to a major highway," the appellate court concluded there was sufficient evidence of criminal negligence to support the filing of an information on a charge of involuntary manslaughter. (Id. at p. 455, 30 Cal.Rptr.2d 681; see also, id. at p. 459, 30 Cal.Rptr.2d 681.)
Viewing the evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence to support defendant's conviction. (See Singh, supra, 119 Cal.App.4th at p. 911, 14 Cal.Rptr.3d 769.)
Defendant maintains that prosecution under the involuntary manslaughter statute was preempted by the more specific provisions of section 399. Defendant is incorrect.
"[T]he ... preemption rule is applicable (1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute." (People v. Watson (1981) 30 Cal.3d 290, 295-296, 179 Cal.Rptr. 43, 637 P.2d 279 (Watson ).)
"[W]hen the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears." (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, 265 Cal.Rptr. 144, 783 P.2d 731, italics omitted; People v. Molina (1992) 5 Cal.App.4th 221, 230-231, 6 Cal.Rptr.2d 736.)
However, in Watson, supra, 30 Cal.3d at pages 296-297, 179 Cal.Rptr. 43, 637 P.2d 279, the California Supreme Court held that charging a defendant under the vehicular manslaughter statute did not preempt prosecution for second degree murder due to the significant difference in the intent required for each offense. "The requisite culpability for the vehicular manslaughter charged here is gross negligence [citation], which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Id. at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279, italics omitted.) The court concluded that, because "the prosecution will be required to show a higher degree of culpability in support of the second degree murder charge than it will to establish vehicular manslaughter," prosecution for second degree murder was not precluded. (Id. at p. 297, 179 Cal.Rptr. 43, 637 P.2d 279.)
We agree with the People that "there is a similar distinction between the levels of conduct involved in a violation of section 399 and section 192, subdivision (b), that renders the preemption doctrine inapplicable." A higher degree of culpability is required to establish involuntary manslaughter than for a violation of section 399. Section 399 requires proof only that a defendant did not use ordinary care in keeping an animal that he knows may pose a risk of danger. In contrast, involuntary manslaughter requires proof of gross negligence--acts that are such a departure from the conduct of an ordinarily careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of such acts.
"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." (Berry, supra, 1 Cal.App.4th at p. 783, 2 Cal.Rptr.2d 416.) There is no basis for presuming that when such conduct meets the aggravated criminal intent required for involuntary manslaughter, the Legislature intended to preclude prosecution for that offense.
Accordingly, we reject defendant's contention that the preemption doctrine applies in this matter.
Defendant raises numerous other claims of error that merit only brief discussion.
Defendant argues the trial court erred by not excluding all evidence concerning the sire of the two dogs--a third dog owned by defendant, but not involved in the attack on the victim.
In response to defendant's pretrial motion to exclude all evidence pertaining to defendant's third dog--a full-bred Rottweiler that was not involved in the attack on the child--the trial court ruled that evidence that defendant did not "secure" the dog would be admissible but not evidence of the dog's propensity to be vicious. The court reasoned that evidence that the third dog was able to get out from the fenced yard was relevant to defendant's duty of care and on the issue of whether he had notice that the two dogs could get out of the yard.
We disagree with defendant that this evidence was irrelevant and unduly prejudicial. Evidence that the third dog was able to get out and that defendant was aware of it was relevant to whether defendant also was allowing the two dogs "to go at large" or was maintaining the two dogs "without ordinary care," an element under section 399, subdivision (a). The evidence was also relevant to whether defendant's negligence in failing to secure the two dogs was aggravated, as required to support a conviction of involuntary manslaughter. There was nothing unduly prejudicial about this evidence as limited.
Defendant also complains that evidence of aggressive behavior by the third dog was introduced at trial despite the trial court's exclusion of such evidence. However, defendant does not claim, and the record does not support, that the prosecuting attorney intentionally elicited this information, which would constitute prosecutorial misconduct. (See People v. Pinholster (1992) 1 Cal.4th 865, 964, 4 Cal.Rptr.2d 765, 824 P.2d 571.) Moreover, defendant did not object to the evidence or seek an admonition to the jury to disregard the evidence. (Ibid.) Even prejudicial misconduct is not reversible error if the defendant fails to object and request an admonition to the jury to disregard it. (People v. Price (1991) 1 Cal.4th 324, 447, 3 Cal.Rptr.2d 106, 821 P.2d 610.) Thus, any objection was forfeited. (Ibid.)
Next, defendant claims the trial court erred by allowing the prosecutor to ask him "if prosecution witnesses had lied on the stand." It is true that "[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue." (People v. Melton (1988) 44 Cal.3d 713, 744, 244 Cal.Rptr. 867, 750 P.2d 741.) Here, the prosecutor asked defendant whether statements made by several prosecution witnesses were true. However, defense counsel interposed only two objections, neither of which was based on the fact that the questions called for an inadmissible opinion or irrelevant evidence. Defense counsel objected to a question concerning whether certain statements by witnesses were true or false, stating only "I don't think [defendant] can answer that question." The basis for the only other objection was that the question misstated the evidence.
The trial court cannot be found to have erred unless an objection is stated on proper grounds. (Kinney v. County of Contra Costa (1970) 8 Cal.App.3d 761, 771, 87 Cal.Rptr. 638; People v. Grigsby (1969) 275 Cal.App.2d 767, 773-774, fn. 3, 80 Cal.Rptr. 294.) Defendant has failed to establish error.
Finally, defendant argues the trial court erred by not granting defendant's motion for a new trial. "In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court 'should [not] disregard the verdict ... but instead ... should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' " (People v. Davis (1995) 10 Cal.4th 463, 523-524, 41 Cal.Rptr.2d 826, 896 P.2d 119.) "A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (Id. at p. 524, 41 Cal.Rptr.2d 826, 896 P.2d 119.)
Defendant's motion for a new trial was based on his contention that the verdicts were contrary to the evidence. (§ 1181, subd. (6).) To the extent that, on appeal, defendant relies on his arguments concerning the sufficiency of the evidence, we have already rejected these arguments and "do so again in the present context." (People v. Navarette (2003) 30 Cal.4th 458, 527, 133 Cal.Rptr.2d 89, 66 P.3d 1182.)
Defendant also claims that with regard to his conviction for violating section 399, subdivision (a), the trial court's denial of the motion for a new trial was suspect because the court believed the definition of "mischievous" provided to the jury was "much more restrictive than any common meaning of the word." Because we have concluded that instructional error requires reversal of defendant's conviction for this offense, we need not reach this question. However, we note that the trial court's review of the evidence on this element reflects that it applied the proper definition of "mischievous": The trial court reviewed evidence supporting a finding that defendant knew the two dogs acted aggressively or might act aggressively when outside his yard and concluded it was "reasonabl[e][to] infer that the defendant, as the owner of the dogs, must have had knowledge of his own dogs' tendencies and behavioral traits, since others, less connected with the dogs, were aware of those traits." No abuse of discretion occurred. [FN3]
FN3. As we find no merit to all but one of defendant's claims, we reject his contention that there was any cumulative prejudicial effect from the claimed errors.
Defendant's conviction on count I for violation of section 399, subdivision (a), is reversed. The judgment is otherwise affirmed. The matter is remanded to the trial court for further proceedings.