THE PEOPLE v. ARNETT WILLIAM COUNTS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Arnett William Counts appeals from a judgment entered after a jury convicted him of 10 counts of unlawfully owning, possessing, keeping, and training a dog with the intent that the dog engage in an exhibition of fighting with another dog.  (Pen.Code, § 597.5, subd. (a)(1).) ¹

Appellant was sentenced to three years in state prison as follows:  as to count 1, the upper term of three years and as to counts 2 through 10, concurrent upper terms of three years.   The trial court imposed various fines and penalty assessments and awarded appellant 38 days of presentence custody credit.

We reverse the judgment as to counts 2 through 10 and vacate the concurrent sentences as to those counts.   We direct the trial court to correct the abstract of judgment to reflect a conviction for count 1, violation of section 597.5, subdivision (a)(1).   In all other respects, the judgment is affirmed.

CONTENTIONS

Appellant contends that (1) the trial court erred in failing to instruct the jury sua sponte regarding unanimity, or, alternatively, appellant should have been charged with only one count of violating section 597.5;  (2) the trial court erred in denying appellant's section 654 motion;  and (3) nine of the convictions must be reversed.   The People concede that the trial court erred in failing to sua sponte instruct the jurors regarding unanimity, or, alternatively, that the trial court should have charged him with a single count, and that counts 2 through 10 should be reversed.

FACTS AND PROCEDURAL HISTORY

On March 7, 2007, Los Angeles Police Department Detective Susan Brumagin found 17 adult pit bulls and four unweaned puppies in the backyard of a residence in Los Angeles.   The dogs were chained to stakes made out of tire axles and chains.   All of the adult dogs had injuries, including scars on their faces, shoulders, legs, ears, nose, eyes, and heads.   In the backyard, Detective Brumagin found two spring poles, a weighted collar, a caged chicken, transport kennels, a breeding stand, antiseptic, scalpels, and medical closure staples.   Detective Brumagin also found medical staple guns, a medical journal, appellant's resume, planned breeding charts, and medicine.   Dog fighting books, articles, magazines, and photographs related to dog fighting were also found at the residence.   The books set forth rules on dog fighting, provided information on how to bribe a veterinarian, described how to avoid detection, described how to use tire axles and chains to secure dogs, and contained breeding charts.   The names of some of the dogs found at the residence were listed in the breeding charts.   Items found in the garage included a treadmill, a slatmill, a timer, weighted collars, a scale, and ribbons.   A health care professional planner was found in the house that indicated how many minutes each dog was to run on the treadmill, as well as walk days and rest days.   The planner also indicated that a party, or dogfight, was scheduled on the 47th day of the program.

During the investigation, appellant arrived at the residence and told Detective Brumagin that he was the caretaker for the dogs.   Appellant stated that two of the dogs belonged to him.   Appellant said that he and Walter Citizen (Citizen) ² operated the Cali Cartel kennel, which was named in one of the publications seized from the house.   Citizen was determined to be the owner of the property.

In a telephone interview on April 23, 2007, appellant told Detective Brumagin that he had purchased the treadmill and the slatmill.   He also said that most of the dogs belonged to him and he retained partial ownership of some of the females.

At trial, West Coast Humane Society Director Eric Sakach (Sakach) opined that the Cali Cartel kennel was a dog fighting operation.   He based his opinion on the scarring on the dogs that was consistent with staged dogfights, the setup of the property, the training items, the staking of the dogs, the publications found on the property, the presence of the dogs' names in the publications, and the veterinary devices and medicines found on the property.   Sakach testified that dogs are trained to fight and exposed to different fighting styles from a young age.   They are conditioned using treadmills and a four- to eight-week conditioning program.   The dogs' diets are carefully monitored and recorded.

Veterinarian Dena Mangiamele testified that pet owners typically do not possess scalpels, tweezers, intravenous equipment and ringers.   She opined that the medical supplies and pharmaceuticals found at the Cali Cartel kennel required medical expertise and were used to treat wounds or injuries associated with dog fighting.   She stated that the injuries to the dogs were not consistent with an occasional off-leash fight and that none of the dogs would have been presentable at dog shows.   She also testified that veterinarians are required to report suspicions of dog fighting to local law enforcement.

Los Angeles Police Department Scientific Investigation Division examiner Tim Cheadle opined that the breeding charts and other documents found inside the house were both in appellant's handwriting, based on his examination of appellant's driver's license application.   He qualified his analysis by stating that he had limited handwriting samples for comparison.

Richard Stratton, author of one of the publications found at the property, testified on appellant's behalf that the dogs' injuries could have occurred in a yard fight and that there was no evidence appellant was involved in dog fighting.

DISCUSSION

The trial court erroneously failed to instruct the jurors sua sponte on unanimity

The trial court erred in failing to instruct the jury sua sponte regarding unanimity, or, alternatively, appellant should have been charged with only one count of violating section 597.5.   The People concede both points.

A unanimity instruction is required if the jurors could disagree on which act a defendant committed and yet convict him of the crime charged.  (People v. Davis (2005) 36 Cal.4th 510, 561.)   Even absent a request, the trial court should instruct on unanimity when circumstances so warrant.  (Ibid.) These circumstances include when there is more than one distinct act introduced by the evidence, each of which could support a single charge.  (Ibid.) Failure to give a unanimity instruction is reversible error.  (People v. Sanchez (2001) 94 Cal.App.4th 622, 634.)

Section 597.5 punishes any person who “[o]wns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog.”   Here, the prosecutor presented 10 identical counts and introduced evidence regarding 17 adult dogs that were being trained for, and had injuries consistent with, a staged dogfight.   But, the jury was not instructed which of the 10 counts applied to which of the 17 dogs or instructed on the need to unanimously agree as to a specific dog as a basis for a specific count.   Nor, in closing argument did the prosecutor specify which counts applied to which dogs.   Accordingly, the People concede, and we agree, that the trial court erred in failing to give a unanimity instruction and that counts 2 through 10 should be reversed.

We need not address appellant's alternative argument that counts 2 through 10 should be reversed on the basis that “section 597.5 could be committed by either a single act or a continuing course of conduct in that one act or repetitive acts of training could result in proving a defendant trained a dog to enter a fight.”  (People v. Sanchez, supra, 94 Cal.App.4th at p. 632 [a continuing course of conduct in violation of section 597, subd. (b) exists where the wrongful acts were successive, compounding, and interrelated, constituting only a single crime].)   However, we note that the People concede that appellant could have been charged with a single count of violating section 597.5 on the theory that he committed a continuing course of conduct.

We also find it unnecessary to address appellant's further argument that the trial court erred in denying his section 654 motion.

DISPOSITION

The judgment is reversed as to counts 2 through 10 and the concurrent sentences as to those counts are vacated.   The trial court is directed to correct the abstract of judgment to reflect a conviction for count 1, violation of section 597.5, subdivision (a)(1) and ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1.  All further statutory references are to the Penal Code unless otherwise indicated..  FN1.  All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Codefendant Citizen is not a party to this appeal..  FN2. Codefendant Citizen is not a party to this appeal.

_, Acting P.J. DOI TODD _, J. CHAVEZ