In many instances when a person calls the police to report some type of incident, the police will respond, “that is a civil matter.” The police will then say that the complaining party should contact a lawyer to discuss filing a civil lawsuit. This is quite common when someone borrows property or money and keeps the item or money. Police do not want to get involved.
Main Point: Pit Bull owner is criminally liable for his dog’s biting a neighbor, who hit the dog with a cane to protect his Labrador Retriever.
This can happen when someone tells police that a neighbor’s dog bit their dog.
When a neighbor’s dog bites a person, Penal Code § 399(b) permits police to arrest the dog’s owner and then permits prosecution of the owner for a felony or misdemeanor. Penal Code § 399 (b) reads:
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, causes serious bodily injury to 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 misdemeanor or a felony.
“Mischievous propensities” as used in the statue means those propensities that naturally pose a risk of harm or injury to others. People v. Berry
(1991) 1 Cal. App. 4th 778, 783. The statute has not been interpreted by any court yet as to what fails to constitute “ordinary care,” which sounds in tort law, or of a civil law standard.
In the case of People v. Armando Gonzalez Flores
, the Santa Rosa Superior Court had the opportunity to do so. A short factual background review is helpful. Defendant Flores owned a massive pit bull named Blue. Sonoma County Sheriffs had known the dog was dangerous, and as a result, had Blue micro chipped and neutered.
On December 12, 2011, nearly ninety-year-old William Siemsen was sitting on his front porch after having just finished lunch. His next door neighbor was Flores. Blue wondered into Siemsen’s front yard and started fighting with Luna, which was Siemsen’s nine year old black Labrador. Luna was graying around his muzzle.
Blue caught Luna in his jaws, but Luna broke free and ran up on the porch where Siemsen was sitting. Blue followed Luna up onto the porch and clamped down on Luna again. Siemsen could not even stand up to move, as events happened so fast. Siemsen then used his cane to hit Blue to get the dog to release Luna. It worked, but Blue bit Siemsen twice on his leg.
The bites left Siemsen with a deep two inch wound and a smaller wound. An ambulance took him to the hospital. According to hospital records, there was massive amount of blood everywhere.
An off duty police officer happened to be driving by when the events took place. He stopped and ran to help Siemsen. He also called police and animal control.
When Flores was located, officers described him as drunk and dismissive of the wounds to Siemsen. Flores even blamed Siemsen for his injuries for hitting Blue with a cane, but admitted Blue had attacked about four or five other dogs in the past.
Police then arrested Flores and the Sonoma County prosecutor charged Flores with violating Penal Code § 399(b). The prosecutor was aware that Sonoma County Animal Control had given Flores a written notice, based on Blue’s documented and unprovoked attacks on other dogs, to keep Blue indoors at all times or in a secure enclosure. Flores was convicted.
Flores appealed his conviction, arguing to the First Appellate District that there was insufficient evidence to convict him of failing to use ordinary care and that the injuries to Siemsen were not serious bodily injuries as required in Penal Code § 399(b).
The First Appellate District court, in People v. Armando Gonzales Flores
(2013 DJDAR 6087), firmly denied Flores’ appeal. The court found that the county’s notice to Flores to keep Blue chained or in a secure enclosure created a duty to safeguard the public from Blue. Flores’ tethering Blue in his front yard, from which Blue broke free to attack Luna was wholly inadequate, which the jury found true. The appellate court would not disturb that factual finding.
As to the injuries to Siemsen, the appellate court found there was sufficient evidence for the jury to find the extensive bleeding and the photographs depicted serious bodily injury.
The trial court’s ruling was affirmed. Flores was placed on three years of formal probation with various terms and conditions.
For more information about battery, click on the following articles:
- What Is Assault (Penal Code § 240)?
- Federal Conviction Reversed for Assault Because Federal Officer Not Aware Defendant Threw Rock at Him
- Shooting Someone with a BB Gun Can Be Assault with a Deadly Weapon (Penal Code § 245(a)(1))
Greg Hill & Associates