Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF061662, Christine V. Pate, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Susan K. Marr, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Heather F. Crawford, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant Isaac Joseph Mirelez of four counts of animal cruelty (§ 597, subd. (a)), including personal use of a firearm (§ 12022.5, subd. (a)), after he shot his neighbor’s four pit bulls. The jury further found true that defendant had one prior strike conviction (§ 667, subds. (c), (e)(1)) and two prior felony convictions. (§ 1203, subd. (e)(4).) The court sentenced defendant to a total prison term of eight years.
On appeal, defendant charges the trial court committed various instructional errors regarding the meaning of malice, abatement of a public nuisance, self-defense, defense of another, and necessity. All of defendant’s arguments are a variation on the theme that defendant was privileged to shoot the dogs because they were dangerous. We reject defendant’s contentions and affirm the judgment.
II
FACTUAL BACKGROUND
The subject events took place in the Landon Lane neighborhood on the Torres-Martinez Indian reservation in Thermal, California. On March 6, 2008, defendant shot four pit bulls that had previously attacked two neighbors, Terran Torro (Torro) and Samantha Bullchild (Bullchild). Two dogs died.
Cory Wilson (Wilson), the owner of four pit bulls, named Ruth, Ruby, Cherry, and Pizza, had lived on Landon Lane across the street from defendant for five years. Wilson’s property had a five-foot chain link fence and locking gates. Wilson had two young children, ages five and seven, whom he allowed to be around the dogs.
A. The Previous Incidents
Torro testified that the gates on Wilson’s property were often open and the dogs acted aggressively toward passersby. Wilson’s dogs had chased Torro twice. Torro asserted that Wilson had once slashed the throat of his own dog, Pizza, and that Wilson threw rocks at the dogs.
One day near sunset, Torro was standing outside his cousin’s house, across the street from Wilson’s yard. As Torro lit a cigarette, two of Wilson’s pit bulls jumped at his neck. He tried to evade them but they continued attacking him. He grabbed a broomstick and hit the dogs while banging on his cousin’s door until he could escape inside. The bite on his arm severed a muscle and required stitches. After the attack, Torro protected himself against the dogs by carrying a car antennae as a weapon. As Wilson described the incident with Torro, Torro had entered Wilson’s yard when he was bitten on the arm.
Another neighbor, Bullchild, testified that she was afraid of the dogs because they had barked at her previously. Bullchild said other people in the neighborhood were concerned about the dogs’ viciousness. The sheriff’s department had said it could not take action because there was no leash law in effect on the reservation.
On the evening of February 28, 2008, as Bullchild walked past Wilson’s property, she was attacked by the dogs who came from behind the driveway gate. They bit her three or four times on her wrist, ankle, and leg. She screamed and called for Wilson to rescue her. When Wilson whistled at the dogs, they returned to the yard. Her wounds were bleeding and her father called an ambulance. She received treatment at a hospital. Wilson acknowledged he had heard Bullchild scream but he claimed his dogs were in the yard barking when he responded to her cries for help. Bullchild was crying and had a bite on her arm and leg. Wilson offered to take her to the hospital.
Wilson claimed that he had never seen the dogs attack anyone although defendant had complained to the tribal housing authority they had chased him. Wilson believed that defendant had provoked aggressive behavior in the dogs. One dog had been injured by a crossbow arrow Wilson found in his yard. Wilson also found BB pellet wounds on the dogs.
B. The Shooting on March 6, 2008
Lawrence Smith (Smith) also lived on Landon Lane. He believed Wilson’s dogs had a reputation for viciousness. Although the dogs never attacked Smith, they had acted aggressively toward defendant when he walked by the Wilson property.
On March 6, 2008, Smith was working in a neighbor’s backyard at around 1:00 p.m. when he saw defendant standing outside Wilson’s fence, armed with a.22 rifle. Smith saw and heard the four dogs barking in Wilson’s yard. Smith heard gunshots. Smith yelled at Defendant, “‘What the fuck are you doing shooting Cory’s dogs?’” Defendant responded, “‘I’m going to kill all them fucking dogs.’”
Wilson came home and found blood in his yard, on the sidewalk, the front porch, and the driveway. The four dogs were bleeding from bullet wounds and ultimately two died.
Isaac White, a Riverside County sheriff’s deputy, testified he responded to a call at 2:18 p.m. White contacted Wilson in his front yard. One pit bull was already dead and the others were injured. A second dog apparently died later.
III
ANALYSIS
Defendant was charged with animal cruelty under section 597, subdivision (a). This subdivision requires that the defendant act “maliciously and intentionally.” Section 7 defines “malice” in general as “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, ...” (§ 7, par. 4.)
Defendant’s arguments on appeal are encapsulated in the following passage:
“The defense case depended entirely upon demonstrating some justification for appellant’s actions. Accordingly, the defense evidence and testimony was directed toward showing the vicious nature of the... dogs and their propensity to escape from their yard and attack passers-by without provocation. Defense counsel submitted several proposed instructions to direct the jurors[’] attention to the nature of these dogs and also to provide other possible explanations for the shootings. Defense counsel hoped to persuade the jury that there was at least a reasonable doubt as to whether appellant shot the dogs maliciously, i.e., solely out of a desire to inflict pain or injury. The proposed defense instructions on self-defense, necessity, and abatement of a public nuisance supplied other possible explanations for appellant’s conduct.”
We review instructional error independently as a mixed question of law and fact and without according deference to the trial court’s decision on whether to give a particular instruction. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Cole (2004) 33 Cal.4th 1158, 1217.)
A. Instructional Error on the Malice Element of Animal Cruelty
Defendant contends that the trial court misinstructed the jury regarding the malice element of animal cruelty. Based on CALJIC No. 14.96, the court instructed the jury that animal cruelty required that defendant have acted “maliciously”:
“Every person who unlawfully and maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal is guilty of a violation of Penal Code section 597, subdivision (a), a crime. [¶]... [¶]
“In order to prove this crime, each of the following elements must be proved:
“1. A person unlawfully and with the specific intent to do so, maimed, mutilated, tortured or wounded a living animal or killed an animal; and
“2. The person acted maliciously.”
The court declined to instruct the jury on an exception to section 597, subdivision (a), which is provided at section 599(c): “... nor must this title be construed as interfering with the right to destroy... any animal known as dangerous to life, limb, or property, ...” Defense counsel did not object.
The court then instructed: “The words ‘malice’ and ‘maliciously’ mean a wish to vex, annoy, or injure a living animal, or an intent to do a wrongful act.” (CALJIC No. 1.22.) Defense counsel argued that “merely injuring an animal is not necessary[ily] malicious, ” using as examples of “non-malicious injury” a veterinarian who euthanizes an animal and the employees of a slaughter-house. The court rejected that argument, as well as defense counsel’s request that the instruction on malice be changed to read “a wish to vex, annoy, or injure a living animal, and an intent to do a wrongful act.”
In closing argument, the prosecutor argued that the jury could not consider evidence of the pit bulls’ viciousness.
As a preliminary matter, we agree with the People that defendant has waived any appellate claim regarding the instruction based on CALJIC No. 14.96. (People v. Burnett (2003) 110 Cal.App.4th 868, 875.) The Use Note for CALJIC No. 14.96 states: “If there is an issue raised concerning section 597, subdivision (c), or section 599c, special instructions will have to be devised.” Defense counsel did not ask for the court to include any pinpoint instruction based on the exception afforded by section 599c. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.) Furthermore, the exception stated in section 599c “applies only to specific animals known to pose a danger to life, limb or property” and not to animals “bred and raised in captivity” for domestic purposes. (People v. Thomason (2000) 84 Cal.App.4th 1064, 1068.)
The instruction defining malice, CALJIC No. 1.22, was proper. Defendant urges that “malice” and “maliciously” may mean something different in the context of animal cruelty charges. But the language used is taken verbatim from section 7. (People v. Estrada (1995) 11 Cal.4th 568, 574.) The instruction was properly modified to refer to an animal, not a person. (See People v. Dunn (1974) 39 Cal.App.3d 418.)
Furthermore, “malice” or “maliciously” are not technical legal terms requiring specialized instruction: “‘Malice’ is defined in non-legal settings as the ‘desire to cause pain, injury, or distress to another’ or the ‘intent to commit an unlawful act or cause harm without legal justification or excuse.’ (Merriam-Webster’s Collegiate Dict. (1999) p. 704.) In the circumstances of this case, the common understanding of maliciously is no different than the applicable definition from the statute and CALJIC No. 1.22. Accordingly, no additional instruction beyond that of the statutory language was required.” (People v. Adams (2004) 124 Cal.App.4th 1486, 1494.)
If defendant shot the pit bulls with the intent to vex, annoy, or injure, then by definition he also intended to do a wrongful act. Subdivision (a) of section 597 prohibits “maliciously and intentionally kill[ing] an animal, ...” Thus, the actus reus—the wrongful act—is killing an animal. No different instruction was required.
B. Abatement of Public Nuisance
Defendant maintains he had the right to shoot the dogs to protect the public against a nuisance. The trial court rejected defendant’s request for a special instruction based on sections 370 and 372 and Civil Code section 3495: “Civil Code 3495. Any person may abate a public nuisance which is specially injurious to him by removing, or, if necessary, destroying the thing which constitutes the same, without committing a breach of peace, or doing unnecessary injury. [¶] Anything which is injurious to health or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood or unlawfully obstructs the free passage or use, in the customary manner, of any street, is a public nuisance. P.C. 370. [¶] Every person who maintains or commits any public nuisance is guilty of a crime. P.C. 372.”
On appeal, defendant insists vociferously that “abatement of a nuisance was a legally appropriate defense theory.... California law has long recognized that an aggressive dog may constitute a public nuisance which an individual may be privileged to abate by killing the animal, ” citing Devincenzi v. Faulkner (1959) 174 Cal.App.2d 250, 254-255, in which the appellate court approved a trial court’s instruction that one is “‘privileged to destroy an animal for the purpose of defending himself or third persons against harm threatened by the animal, (a) if its actions led him to know or reasonably believe that the animal would inflict such harm and (b) the destruction was reasonable in view of the gravity of the harm threatened and (c) the person reasonably believed the harm could be prevented only by immediate destruction of the animal.’” Devincenzi noted that “[t]he standard used is that of the reasonable man in defendant’s position.” (Id. at p. 255.)
Devincenzi was a civil suit between individuals, not a criminal prosecution. In Devincenzi, the defendant shot and killed two Great Danes after they had attacked his pet cocker spaniel and threatened a boy on a bicycle. The present case involves much different facts in which defendant apparently shot Wilson’s dogs when they were confined inside the yard. Furthermore, there was no evidence that the dogs were threatening him or any person at the time of the shooting. Therefore, the legal privilege to destroy an animal, described in Devincenzi, does not apply because defendant was not defending himself or third persons against threats from Wilson’s dogs.
Defendant’s reliance on People v. Overacker (1911) 15 Cal.App. 620 is irrelevant because it involved a dispute about a private nuisance between two landowners and has little bearing on the present case. The other California and out-of-state cases cited by defendant, concerning abatement of a dog as a nuisance, also involved situations in which a dog was threatening or attacking someone or was at large. There was no evidence that defendant was being threatened or attacked or that Wilson’s dogs had escaped their yard. Defendant’s argument that such an inference was possible is entirely based on speculation.
We also reject defendant’s contention, first raised in his reply brief, that pit bulls are inherently dangerous. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 168, citing Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 [it is improper to take judicial notice that all German shepherds or all adult male pit bulls are dangerous].) As commentators have noted, “a dog’s propensity to bite results from a combination of many factors, including a genetic predisposition towards aggression, lack of early socialization with people, specific training to fight, the quality of care provided by the owner, and the behavior of the victim. [Citation.]” (Zuniga v. County of San Mateo Dept. of Health Services (1990) 218 Cal.App.3d 1521, 1532.)
Furthermore, defendant cannot claim a private right of abatement against Wilson’s dogs. Rather, the abatement of a public nuisance must be effected by government enforcement (Civ. Code, § 3494) unless a private citizen can show a public nuisance is specially injurious to him. Defendant made no showing of a special injury: “The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040.) Otherwise, animal control and law enforcement officers are the persons authorized to seize, impound, or destroy a dangerous dog. (Food & Agr. Code, §§ 31621, 31625, 31645; Riv. Ord. Nos. §§ 6.08.240, 6.16.040.) Therefore, the court properly refused to give defendant’s proffered instruction on abatement of a public nuisance.
C. Self-Defense, Defense of Another, and Necessity
Defendant also argues the court erred in refusing to give instructions on self-defense, defense of another, and necessity. The trial court has a duty to instruct on defenses only when they are supported by substantial evidence, meaning evidence a reasonable jury would find persuasive. (People v. Wilson (2008) 43 Cal.4th 1, 16; People v. Stitely (2005) 35 Cal.4th 514, 551.) We agree with the trial court that no evidence supported giving instructions on these defenses.
In People v. Lee (2005) 131 Cal.App.4th 1413, 1420, 1426-1427, defendant fired at two dogs after they threatened her as she walked her dog. A self-defense instruction was warranted under those circumstances in which defendant felt she was in immediate and imminent danger. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
When defendant shot Wilson’s dogs, they were inside a fenced yard. The dogs had not attacked defendant or anyone else. Instead, defendant announced his intention to shoot them without apparent provocation. No instructions on self-defense or on defense of another should have been given.
Similarly, no instruction on necessity was required because defendant could not establish he acted in good faith that was objectively reasonable, to prevent a significant evil, and that there was no adequate alternative. (CALCRIM No. 3403; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035; People v. Wilson, supra, 43 Cal.4th at p. 16.)
IV
DISPOSITION
In spite of the past history of Wilson’s dogs, defendant’s decision to execute them was an act of animal cruelty, committed maliciously and without any appropriate justification or defense.
We affirm the judgment.
We concur: Ramirez P.J., Miller J.