BERRY v. PEOPLE (1989)

The People have charged Michael Patrick Berry, defendant, with the murder of two and one half year old James Soto who was killed by Berry's pit bull dog.   Defendant also stands accused of negligent keeping of a mischievous animal which kills a human being (Pen.Code, § 399);  marijuana cultivation (Health & Saf.Code, § 11358);  and misdemeanor keeping of a fighting dog.   (Pen.Code, § 597.5, subd. (a)(1).)   By this statutorily authorized petition for a writ of prohibition (Pen.Code, § 999a), defendant seeks dismissal of the charges of murder and Penal Code section 399.   He claims the evidence taken at the preliminary hearing falls legally short of establishing implied malice sufficient to bind over for murder;  the factual findings of the magistrate rule out malice;  and there is no evidence that the animal was mischievous or was kept without ordinary care.

The test whether evidence is sufficient to allow a prosecution to proceed to trial is whether “ ‘ “a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” ’  ․ An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it․  [¶] A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, the court will not inquire into its sufficiency․  Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.”  (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197, citations omitted.)   Our task is to decide whether “a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion that defendant committed the crime charged.”  (People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

We have concluded, for reasons we shall state, that judged by this standard of review the record here will support a prosecution for murder.   The other charges may also go forward.

RECORD OF THE PRELIMINARY HEARING

In the municipal court, defendant was charged with three counts:  Involuntary manslaughter (Pen.Code, § 192, subd. (b));  Penal Code section 399;  and marijuana cultivation (Health & Saf.Code, § 11358).   Although murder was not alleged, the People may charge it in the information if the evidence developed at the preliminary hearing supports the charge.   (Jones v. Superior Court (1971) 4 Cal.3d 660, 664–665, 94 Cal.Rptr. 289, 483 P.2d 1241;  Pizano v. Superior Court (1978) 21 Cal.3d 128, 133–134, 145 Cal.Rptr. 524, 577 P.2d 659.)

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 10, 41/212, 21/212, 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.

Two women who knew defendant testified he told them he had raised dogs for fighting purposes and had fought pit bulls.

Richard Soto testified defendant told him he used the treadmill to increase the strength and endurance of his dogs.   Defendant also told both Arthur and Richard Soto that he would not fight his dogs for less than $500 and he told Richard Willy had had matches as far away as South Carolina.

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.

The police found some 243 marijuana plants growing behind defendant's house.   Willy was tethered in such location that anyone wanting to approach the plants would have to cross the area the dog could reach.   That area was readily accessible to anyone.

An animal control officer qualified as an expert on fighting dogs testified.   He said pit bull dogs are selectively bred to be aggressive towards other animals.   They give no warning of their attack, attack swiftly, silently and tenaciously.   Although many recently bred pit bulls have good dispositions near human beings and are bred and raised to be pets, there are no uniform breeding standards for temperament and the animal control officers consider a pit bull dangerous unless proved otherwise.

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 is [sic ] 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.  (Rideout v. Superior Court, supra, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197.)

The case of People v. Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, 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 (1988) 201 Cal.App.3d 152, 246 Cal.Rptr. 915 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.   He clearly did not intend to kill them;  as the decision pointed out, it was in his interests to keep them alive so that he could continue to collect fees from them.   Further, his failure to provide proper treatment for them could be characterized as an act of omission or neglect rather than an affirmative act of homicide.   But the appellate court found sufficient evidence of malice because the jury could infer from his conduct that he actually appreciated the risk to his patients and exhibited extreme indifference to their welfare in failing to provide the proper treatment and care and in administering anaesthesia to them in grossly negligent fashion.   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.’ ”  (People v. Protopappas, supra, at p. 167, 246 Cal.Rptr. 915, citing People v. Burden (1977) 72 Cal.App.3d 603, 615, 140 Cal.Rptr. 282.)   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.”  (Id. 201 Cal.App.3d at p. 168, 246 Cal.Rptr. 915.)

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.”  (Id. at p. 167, fn. 9, 246 Cal.Rptr. 915.)   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.  (Cases holding second degree murder may rest on the setting of a lethal trap include People v. Ceballos (1974) 12 Cal.3d 470, 477, 116 Cal.Rptr. 233, 526 P.2d 241.)

Another decision which thoughtfully explores the nature of implied malice is People v. Love (1980) 111 Cal.App.3d 98, 168 Cal.Rptr. 407.   The facts of that case may be considered more aggravated than in this case or in Protopappas, supra, 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” (id. at p. 106, 168 Cal.Rptr. 407) and points out that the former cases all involve “an element of viciousness—an extreme indifference to the value of human life.”  (Id. at p. 105, 168 Cal.Rptr. 407.)   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.  (Ibid., citing People v. Atkins (1975) 53 Cal.App.3d 348, 359, 125 Cal.Rptr. 855;  People v. Goodman (1970) 8 Cal.App.3d 705, 708, 87 Cal.Rptr. 665;  People v. Burden, supra, 72 Cal.App.3d 603, 619–620, 140 Cal.Rptr. 282.)

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.”  (Id. 111 Cal.App.3d at pp. 107–108, 168 Cal.Rptr. 407.)

 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.  (Pen.Code, § 597.5.)   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.  (71 Cal.L.Rev. 1298, 1303 (1983).)   He also lists many cases where implied malice was grounded on such aggressive acts as reckless driving under the influence (Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279;  People v. Olivas (1985) 172 Cal.App.3d 984, 218 Cal.Rptr. 567);  homicide by weapon or by excessive bodily force (People v. Flores (1986) 178 Cal.App.3d 74, 223 Cal.Rptr. 465;  People v. Dellinger (1988) 201 Cal.App.3d 945, 247 Cal.Rptr. 527, review granted.)   He includes in this list the Protopappas case, supra, 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.”  (72 Cal.App.3d at p. 618, 140 Cal.Rptr. 282.)  “ ‘Willful failure of a person to perform a legal duty, whereby the death of another is caused, is murder, ․’ ”  (Id. at p. 619, 140 Cal.Rptr. 282, citing § 484, Wharton's Criminal Law (12th ed.), vol 1, p. 714.)

 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 (People v. Ceballos, supra, 12 Cal.3d 470, 116 Cal.Rptr. 233, 526 P.2d 241) 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.   For example, we do not believe that a showing that Willy was dangerous to other dogs, without more, would be sufficient to bind over his owner on a murder charge;  there is no evidence in this record that dogs who are dangerous to their own kind are ipso facto dangerous to human beings and therefore there is no support for an inference that the owner of such a dog should be aware of any such danger.   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.¹  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.   There is also evidence, consisting mainly of physical evidence seized from defendant's home, showing that defendant is a connoisseur of fighting pit bull dogs and had sought out a vicious dog in order to have him fight successfully.

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.  (See discussion of Love, supra.)

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.  (Cf. Radoff v. Hunter (1958) 158 Cal.App.2d 770, 323 P.2d 202 [civil liability imposed where dangerous watchdog kept chained in accessible area where dog was not readily visible].)  Also, the fact that defendant took the precaution of restraining the dog is a fact which might show he knew the dog was dangerous.  (Id. at p. 773, 323 P.2d 202.)   The court in Radoff v. Hunter, supra, noted that an owner's knowledge of the vicious propensities of his dog may be inferred, inter alia, from the fact that the dog was kept tied as a watchdog and also from his size and breed.  (Ibid.)  A similar inference may rest on the facts the dog was a pit bull, bought for his fighting ability, bred and conditioned as a fighting dog, kept chained, and described by defendant as a killer.   The civil decisions such as Radoff, supra, do not control the level of mens rea which must be established in this criminal prosecution, but they do illustrate the appropriate inferences to be drawn.   These circumstances clearly support an inference defendant knew his dog was dangerous to humans.

In jurisdictions where liability for a dogbite 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.  (Annot., 51 A.L.R. 4th 446, 450, § 2(a);  see also Radoff v. Hunter, supra;  Annot., 64 A.L.R.3d 1039, 1048, § 2(b).)   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.  [Fn. omitted.]  Moreover, testimony regarding the general characteristics of the dog's breed may be admissible as tending to prove that the dog had a propensity for vicious behavior.”  (Ibid., emphasis added.)   Again, we deal here with a criminal case where the standards of mens rea are more stringent, but nevertheless, according to these general methods of proving scienter developed in dogbite cases, Miller's testimony alone could support an inference that defendant knew the dog was dangerous to people.

California has enacted a series of “dogbite” statutes establishing civil liability for attacks by owned dogs and also stating conditions under which such animals may be confiscated or destroyed.  (Civ.Code, § 3341, et seq.)   It is interesting that the statute providing for possible destruction or removal of the animal requires a showing of two previous bites, or alternatively one bite if the dog has been trained to fight, attack or kill and if his bite caused substantial physical injury.  (Civ.Code, § 3342.5)  The statute imposing civil liability on owners, however, does not state any requirement of previous bitings.  (Civ.Code, § 3342.)   Further, that statute imposes liability regardless of scienter;  but the attack must have taken place in a public place or when the victim is “lawfully in a private place,” a phrase the statute defines to mean when the victim is an invitee or is regularly on the premises for law-imposed purposes, as in the case of a mailman.  (Id.)  None of these statutes are strictly relevant to this criminal proceeding.   They are helpful to the analysis only insofar as they show the focus of legislative interest and the responsibilities considered appropriate for dog owners generally.   Particularly, the animal destruction statute, section 3342.5, is instructive in requiring fewer previous attacks when the dog is a trained fighting dog.   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.

Factual Findings of Magistrate Regarding Malice

 Next, defendant claims the magistrate made a factual finding there was no malice.   The applicable rule is that offenses not originally charged may be charged at the superior court level if supported by evidence taken at the preliminary examination unless a factual finding by the magistrate precludes the charge.  (Jones v. Superior Court, supra, 4 Cal.3d 660, 664–665, 94 Cal.Rptr. 289, 483 P.2d 1241;  Pizano v. Superior Court, supra, 21 Cal.3d 128, 133–134, 145 Cal.Rptr. 524, 577 P.2d 659.)

To begin with, we note that defendant was not charged with murder in the municipal court.   Accordingly it is questionable that the magistrate intended to make any findings as to the existence of malice.

The municipal court judge made lengthy findings.   Defendant relies on this statement:  “There is no question about the fact that there was a killing.   I don't think there was any question about the fact of malice as to this particular victim.”   However, this statement is ambiguous.   It could mean there is no question but that there is malice;  or, there is no question but that there is no malice.   From the entire context of the magistrate's remarks it seems fairly clear the judge in fact meant to say there was no intention to kill or harm this particular child, a different matter entirely.

The People cite other comments of the magistrate to suggest he had no doubt but that malice was involved.   For example, he stated that the evidence revealed “gross and reckless negligence,” a somewhat confused statement which, however, in its use of the term “reckless,” may have referred to the gross recklessness or wanton disregard for life which constitutes malice.  (People v. Watson, supra, 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279;  People v. James (1987) 196 Cal.App.3d 272, 289–290, 241 Cal.Rptr. 691.)

Another possible interpretation which the People suggest is that because the charge brought in the complaint was involuntary manslaughter—an offense for which malice is irrelevant—the magistrate might have meant that there was no question of malice before him.

Regardless what the correct interpretation may be, the ambiguity rebuts defendant's argument that the magistrate has unambiguously found there was no malice.

Further, the language may reflect a legal rather than a factual conclusion.   Legal conclusions are not binding.  (Jones v. Superior Court, supra, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241;  People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

We conclude that nothing found by the magistrate rules out the possibility of malice.

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.²  Both are questions of fact and on both there is much evidence from which a jury might find the necessary elements of the offense.   Such facts include the easy access to the area where the dog was chained;  circumstantial evidence that defendant was aware the dog was dangerous;  defendant's failure to take any precautions to protect neighboring children who lived in close proximity to him, on the same lot;  and the evidence taken from defendant's home, including correspondence from the dog's breeder, that this was a killer dog bred to fight.   Added to this is Miller's testimony that this type of dog is dangerous and likely to mistake a small child for a canine opponent.

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․”  (Webster's Third New International Dictionary (1961) at p. 1442.)   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.

 As discussed above in the context of implied malice, there is no necessary requirement that the dog have bitten before in order to establish the elements of an offense requiring a showing of scienter.   There are manifold other ways to make that showing.   Defendant cites a New York case involving dogs which had attacked previously, but that case does not hold that such previous attacks are the only way to demonstrate the owner's culpability.  (See People v. Sandgren (1951) 302 N.Y. 331, 98 N.E.2d 460.)   That case, a manslaughter prosecution, said there must be a showing that the dog had a mischievous propensity to bite mankind.  (Id. 98 N.E.2d at pp. 465–466.)   It further held that the dogs there were not shown to have a ferocious nature, but might nevertheless have mischievous propensities as demonstrated by their previous attacks.   Here the facts may demonstrate the reverse situation, where the dog is shown to have a ferocious nature but has not previously attacked a human being.

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

 An interesting question the parties do not discuss is whether Penal Code section 399 is a special statute which exclusively applies, preventing any general charge of second degree murder or manslaughter arising out of the negligent keeping of the dangerous dog.  (See generally People v. Watson, supra, 30 Cal.3d at p. 295, 179 Cal.Rptr. 43, 637 P.2d 279;  In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593;  People v. Farina (1963) 220 Cal.App.2d 291, 33 Cal.Rptr. 794;  People v. Swann (1963) 213 Cal.App.2d 447, 449, 28 Cal.Rptr. 830;  People v. Fiene (1964) 226 Cal.App.2d 305, 37 Cal.Rptr. 925.)   If so, then the People would be limited to the punishment of three years maximum authorized by section 399 (and section 18) for the death of a human being caused by the negligent keeping of a dangerous animal.

However a special statute does not replace a general statute unless it includes all the elements of the latter.  (People v. Weltsch (1978) 84 Cal.App.3d 959, 963–964, 149 Cal.Rptr. 112.)   Obviously section 399 does not include the element of malice.   By analogy, People v. Watson, supra, holds that the general murder statute is not preempted by vehicular manslaughter.  (30 Cal.3d 290, 295, 179 Cal.Rptr. 43, 637 P.2d 279.)

The parties similarly do not discuss whether the murder charges here might be bottomed on the judicially created second degree felony murder doctrine.  (See e.g. People v. Burroughs (1984) 35 Cal.3d 824, 829, 201 Cal.Rptr. 319, 678 P.2d 894;  People v. Dillon (1983) 34 Cal.3d 441, 472, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Phillips (1966) 64 Cal.2d 574, 583, 51 Cal.Rptr. 225, 414 P.2d 353;  People v. Ireland (1969) 70 Cal.2d 522, 538–539, 75 Cal.Rptr. 188, 450 P.2d 580.)   Since the parties do not raise the issue we need not rule on it, but we observe that the rule of People v. Ireland, supra, would probably preclude reliance on the doctrine here.  (People v. Ireland holds that the second degree felony murder rule may not be used in cases involving a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.  Id. at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.)

DISPOSITION

The petition for writ of prohibition is denied.

FOOTNOTES

1.   The question counsel asked Miller was “So then what you are saying is is [sic ] that without any prior knowledge of unpredictability, Willy could cause an attack such as this, isn't that true?”   to which he said yes.   As a matter of English grammar there is no reliable inference that can be based on this interrogation.

2.   Penal Code section 399, in relevant part, makes it a felony to keep a mischievous animal, knowing its propensities, without ordinary care, when such animal kills any human being who has taken all precautions the circumstances permitted.

AGLIANO, Presiding Justice.

BRAUER and CAPACCIOLI, JJ., concur.