Filed 12/26/14 P. v. Cornelio CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063608
Plaintiff and Respondent,
v. (Super. Ct. No. SCD238691)
CARLA RAMIREZ CORNELIO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard S.
Whitney, Judge. Affirmed in part, reversed in part and remanded for resentencing.
John L. Dodd & Associates and John L. Dodd, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Steve Taylor Oetting, Tami Falkenstein Hennick, Deputy Attorneys
General for Plaintiff and Respondent. A jury found Carla Ramirez Cornelio guilty of involuntary manslaughter (Pen.
Code,1 § 192, subd. (b); count one) and two counts of owning an animal that kills a
human being (§ 399, subd. (a); counts two and three).2 The court sentenced Cornelio to
four years in local custody: the four-year upper term for involuntary manslaughter and
stayed 16-month lower terms on the remaining counts. Cornelio appeals. She contends
her convictions are unsupported by substantial evidence; section 399, subdivision (a)
preempts section 192, subdivision (b); the court committed errors in instructing the jury
and admitting evidence; the court abused its discretion by imposing the four-year upper
term for involuntary manslaughter; and cumulative error compels reversal. We agree
section 399, subdivision (a) preempts section 192, subdivision (b). Cornelio's remaining
contentions either lack merit or need not be addressed.
I.
BACKGROUND
Cornelio lived with her mother, Alba Cornelio, and other relatives. Cornelio
owned two pit bull dogs, Estrella, who was brown and white, and Estrella's offspring,
Paloma, who was white. Cornelio kept the pit bulls in her back yard. Alba Cornelio had
given her the pit bulls. Alba Cornelio was the dogs' registered owner, because Cornelio
had been a minor when Alba gave her the pit bulls. Cornelio turned 18 in November
2009.
1 Further statutory references are to the Penal Code unless otherwise specified.
2 Count two concerned a pit bull dog named Estrella and count three concerned a pit bull dog named Paloma. 2 Alba Cornelio was tried with Cornelio and convicted of the same offenses. Alba
Cornelio is not a party to this appeal.
A.
December 2010
Arturo Lopez lived two houses east of Cornelio. On December 25, 2010, Lopez
left his house with his three-month-old poodle, Fluffy. Fluffy was on a leash. After
Lopez and Fluffy had walked about 30 or 35 feet from their house, two pit pulls ran
toward them from the other side of the street. One of the pit bulls was white and the
other was brown and white. The pit bulls were not leashed and their owner was not
present. The pit bulls growled and tried to get Fluffy. Lopez tried to pick up Fluffy but
was unable to grab him. The pit bulls got to Fluffy. The white pit bull bit Fluffy,
injuring Fluffy's mouth so that he was unable to close it. Lopez picked up Fluffy, put him
under his coat and started walking home. Lopez walked backward so he could keep an
eye on the pit bulls. The pit bulls followed Lopez and jumped into the air 50 to 60 times.
At least one of the pit bulls continued to growl. The brown and white pit bull bit Lopez
on the leg. Lopez made it back to his house with Fluffy.
Police officers cornered Estrella on Cornelio's front porch. Animal Control
Officer Darrell Hanson caught Estrella with a catch pole and impounded her. Lopez
identified Estrella as the dog that had bitten him on the leg. Officer Hanson did not
impound Paloma because she had returned to Cornelio's back yard, where Officer Hanson
found no weak spots in the fence, and because Paloma had not bitten a person. No one
was home at Cornelio's house. Hanson posted an impound notice.
3 Lopez took Fluffy to a veterinarian's office, where Fluffy stayed for three days and
underwent surgery to repair a broken jaw. Lopez went to a doctor's office where he
received rabies shots.
The day after the attack, Lopez went to the home of the pit bulls' owner and told a
man what had happened. The man said he would take responsibility for Lopez's
expenses. Two or three days later, a male teenager knocked on Lopez's door. Lopez told
the teenager that he wanted to speak with the teenager's father. The older man gave
Lopez $460.
Estrella was quarantined in the animal shelter from December 26, 2010, to January
4, 2011. She was lame and appeared to have been hit by a car. She had multiple scars.
She was unsocialized, and shelter personnel were unable to perform a complete
examination because she was aggressive and growled and barked. This was noted on the
receipt given to the owner upon Estrella's release. A member of the Cornelio household
paid a fee for the release. Cornelio was aware of the payment.
An animal control officer told the Cornelio family to secure their yard. Cornelio
learned the pit bulls had left her back yard by the east gate and had attacked Lopez. She
believed the pit bulls had killed Fluffy. According to Alba Cornelio, her son attached a
piece of plywood to the gate to prevent another escape. The plywood was ten feet high,
five or six feet wide and about one inch thick. Cornelio was aware of this repair.
4 B.
June 2011
James Mendoza and his wife of 55 years, 75-year-old Emako Mendoza, lived next
door and to the west of the Cornelios. A six-foot wooden fence separated the two
properties. Mr. Mendoza put a three-foot high piece of wire or chain link above the fence
to keep the pit bulls from jumping over and to keep cats out of his yard. A neighbor who
lived behind the Cornelios erected a chain link fence, and in the process cut away part of
the wooden fence, leaving a gap of about one foot in a corner. According to Mr.
Mendoza, the Cornelios propped a heavy piece of wood against the hole, but the wood
was not sufficient to keep the pit pulls out of his yard. Because the situation was unsafe,
Mr. Mendoza placed a six-foot high piece of chain link fencing at the site of the gap, then
put a chain link gate against the fencing and bolted the gate to the fence. For two or three
years, Mr. Mendoza's repairs were effective at keeping the pit bulls out of his yard.
Mrs. Mendoza routinely arose around 5:30 a.m., before her husband, and went
outside to pick up the newspaper and water her rose garden. On the morning of June 18,
2011, Mr. Mendoza was awakened by the continuous ringing of his doorbell. He
wondered why his wife did not answer the door. He heard a commotion and opened the
bathroom window. Cornelio and another female neighbor were outside. They said they
had to get into the Mendozas' back yard because their dogs were there. Referring to the
"heavy fence," Mr. Mendoza replied, "There ain't no way your dogs could be at my
house. How did they get through there?" The two neighbors screamed. In less than two
5 minutes, Mr. Mendoza ran to his back yard and opened the side gate so the neighbors
could get their dogs. By that time, the dogs had gone into their own yard through the
hole in the fence. The neighbors rushed back home.
Mr. Mendoza found his wife lying in her rose garden, with her head on the
concrete, saying, "help me, help me." Her left leg and left arm "were just hanging by
threads, completely mutilated." A bone in her left arm was protruding through the skin.
There was a large gash in her right arm and the arm was dangling. Her right leg was "all
chewed up." She was covered in blood.
Mr. Mendoza ran inside and called 911. The 911 operator told Mr. Mendoza to
cover his wife with wet towels. Mr. Mendoza went back outside, unlocked his gate and
covered his wife.
Meanwhile, before Mr. Mendoza called 911, Alba Cornelio yelled through the
slats of the fence then ran into the Mendozas' back yard and saw Mrs. Mendoza. She
became hysterical, said something in Spanish then ran home, where she continued to
scream through the slats of the fence. She did nothing to help Mrs. Mendoza. Cornelio
was in the Mendozas' yard for a short time, if at all.
San Diego Police Officer Christopher Zeltner was a few blocks away when he was
summoned to the scene of the attack. He arrived within minutes and asked Mrs.
Mendoza what had happened. She said she had been attacked by two dogs, one white
and one brown and white, that lived next door. She was in shock and unable to answer
further questions. Mr. Mendoza also seemed to be in a state of shock.
6 San Diego Police Officer Eric Cooper arrived after Officer Zeltner. The officers
were unable to provide Mrs. Mendoza any medical assistance due to the severity of her
injuries and her great loss of tissue and blood. The officers called for paramedics.
Officer Zeltner found a hole in the fence between the Mendozas' and Cornelios'
properties. There were wet marks on the fence that appeared to be blood. Officer Zeltner
used a wooden beam he found in the Mendozas' yard to block the hole. Another police
officer also covered the gap with a tabletop, and for further safety a piece of metal was
jammed into the hole from the Mendozas' yard.
Officer Zeltner went next door to the Cornelio residence. In the yard, he saw two
dogs meeting Mrs. Mendoza's description. The dogs had what appeared to be blood all
over their mouths, faces, chests and heads. Several boards and other objects were leaning
against the fence in the Mendozas' back yard in an insecure, rickety fashion. In the back
yard were empty food and water bowls and at least one empty dog food bag.
Officer Cooper knocked on the Cornelios' door. Cornelio answered. Officer
Cooper asked her where the dogs were. She said they were in the back. Officer Cooper
went to the rear of the residence, opened the screen door and saw the dogs. They looked
at him, and one of them growled and snarled at him.
The paramedics arrived a few minutes after Officer Zeltner. They put Mrs.
Mendoza in an ambulance and took her to the emergency room. Officer Cooper rode in
the ambulance with Mrs. Mendoza and attempted to obtain a statement. He was
unsuccessful; she screamed throughout the trip to the hospital.
7 Animal Control Officer Mary Ann Hoefert arrived and went into the Mendozas'
back yard, where she saw a trampled garden, blood on the bricks and bloody clothes and
bits of tissue, resembling fat, on the ground. Drops of what appeared to be blood led
toward the corner where the Mendozas' and the Cornelios' properties met and where Mr.
Mendoza had bolted the gate to the fence. There, a section of the chain link was bowed
away from the metal stake, creating a gap about eight inches wide, large enough for the
dogs to squeeze through. There was a dark stain or "rub mark" on the metal at the gap.
Officer Hoefert looked over the fence and saw the dogs loose in the Cornelios' yard.
They were stained with blood and wore no collars.
San Diego Police Officer Marisela Hernandez was the third police officer to
arrive. She went next door to the Cornelios' house. Cornelio answered the door. Officer
Hernandez asked Cornelio if she knew why Officer Hernandez was there. Cornelio said
yes, because her two dogs had attacked her next door neighbor. Officer Hernandez asked
if the dogs were inside. Cornelio said yes. Officer Hernandez asked to go inside and
check on them. Cornelio consented. Cornelio led Officer Hernandez through the living
room to back door. Cornelio called the dogs. Estrella and Paloma came out of a shed
that was inside a fenced enclosure. The enclosure was constructed of irregularly placed
wood and mangled chain link fencing. There was a gate in the enclosure and the gate
was open. The dogs' faces, necks and torsos were spattered with blood. Paloma was
lactating and dripping milk. The dogs stopped 10 or 15 feet from Officer Hernandez. In
the yard, Officer Hernandez saw two large, torn empty dog food bags. There was an
empty food bowl in the yard and outside of the enclosure.
8 While awaiting animal control officers, Officer Hernandez asked Cornelio who
owned the dogs. Cornelio said she did, and she also owned the puppies born to Paloma
within the last 15 days. Officer Hernandez asked Cornelio who took care of the dogs.
Cornelio said she did.
Officer Hernandez asked Cornelio what had happened that morning. Cornelio said
she had awakened early and heard a women screaming and dogs barking. Concerned for
her dogs' safety, Cornelio went into the back yard to check on them. She realized the
screaming and barking were coming from next door and Paloma and Estrella were the
dogs that were barking. Cornelio went to Mr. Mendoza's home, knocked on the door and
asked if she could check his yard. He opened the door, said it was not possible for her
dogs to get into his yard and closed the door. Cornelio went to the home of another
neighbor to see if her dogs were there. The neighbor said they were not. Cornelio
returned to her own backyard, put a piece of wood against the fence and looked over the
fence into the Mendozas' back yard. Cornelio saw her two dogs in the Mendozas' back
yard near Mrs. Mendoza, who was lying on the ground screaming, hurt and bleeding.
The dogs were staring at Mrs. Mendoza. Cornelio ran to the Mendozas' door and
knocked. When Mr. Mendoza answered, Cornelio said, "My dogs are in the backyard.
There's a woman's who's hurt back there. I need to get back there." Mr. Mendoza said he
would call 911. Cornelio walked through the Mendozas' house and into their back yard.
She stayed a while, then returned to her own house. Cornelio claimed she was the only
one in her family who had heard the screams; everyone else was asleep.
9 Officer Hernandez asked Cornelio if she knew how the dogs got out. Cornelio
said, "I don't know. They must have climbed out." Officer Hernandez asked, "What do
you mean, they climbed out?" Cornelio said, "I don't know. They just get out." Officer
Hernandez asked Cornelio if the dogs had any history of getting out. Cornelio said yes,
and related the December 2010 incident. Officer Hernandez asked Cornelio if the dogs
had bitten anyone else. Officer Hernandez told Cornelio it was likely the pit bulls and the
puppies would have to be removed from the house. Cornelio said okay.
Officer Hoefert joined Officer Hernandez at Cornelio's house and asked to speak
to Alba Cornelio, the dogs' registered owner, to sign relinquishment papers. Cornelio
said her mother was at work cleaning houses. After being instructed to do so, Cornelio
said she would call her mother and ask her to come home. Cornelio made a telephone
call.
For about 30 or 40 minutes, Officers Hoefert and Hernandez waited for Alba
Cornelio to come home. Officer Hoefert asked Cornelio where her mother was. Cornelio
said her mother was actually in the house, in a bedroom, and Cornelio had lied to protect
her mother, who was feeling ill. Officer Hernandez walked into a bedroom and found
Alba Cornelio. Alba Cornelio signed papers allowing the dogs and puppies to be
removed and euthanized.3 Cornelio and two relatives led the dogs from their yard one by
one and loaded them into cages in animal control trucks. The dogs were calm because
3 The puppies were not old enough to survive on their own. 10 they knew the relatives. Officer Hoefert was able to get closer to the dogs once they were
in the trucks. On Estrella's face Officer Hoefert saw bits of fat, the same material that
was on the bloody garments and the ground in the Mendozas' back yard.
After the dogs were impounded, Officer Zeltner entered the Cornelios' back yard.
He noted the dogs had pushed aside the chain link in the gate that Mr. Mendoza had used
to block the gap in the fence between the Mendozas' and the Cornelios' yards, and in so
doing had created an eight-inch hole, through which they had entered the Mendozas'
yard. According to Mr. Mendoza, the hole had not been there two or three days before
the attack.
After the dogs were removed from Cornelio's back yard, Officer Hernandez
inspected the yard. She saw a blanket in the middle of the yard, with a red, meaty
substance on top. The substance looked like animal intestines. Officer Hernandez saw a
hole in the fence with wood lying nearby. Along the fence between the Cornelios' and
the Mendozas' yards were 10 to 20 piles of feces. Inside the enclosure, Officer
Hernandez saw a bucket of water and an empty food bowl.
There was a second enclosure in the Cornelios' yard, built of new wood and chain
link, and attached to the back of the house. Cornelio said this was an area where Alba
Cornelio could have a garden and not be bothered by the dogs. This enclosure was
extremely sturdy. It consisted of two fences. The outer fence was eight-to-ten feet tall
and made of beams bolted together; the beams were also bolted to boards that were
11 secured to the ground with concrete. The inner fence was six-to-eight feet tall. Officer
Cooper tried to shake the fences but was unable to move either one. The only entrance to
the enclosure was through the Cornelios' house.
On June 23, 2011, Officer Hoefert returned to Cornelio's house. When Officer
Hoefert inquired whether Cornelio had food for the dogs, Cornelio showed Officer
Hoefert a covered trash can in the back yard containing quite a bit of dry dog food.
Cornelio explained she kept the food in a trash can with a lid because she had a rat
problem. Cornelio said she had fed the dogs the night before the attack. Cornelio
admitted she had become aware of the hole in the fence about a month before the attack,
but believed the dogs would not go through the hole because there was a post there and
boards covering it. She believed the dogs had escaped through the hole on the day of the
attack.
On June 25, 2011, Officer Cooper saw building materials in the Cornelios' yard
that could have been used to construct a structure or a fence or to cover a hole: a roll of
chain link fencing six-to-seven feet by more than three feet, plywood, boards, beams,
logs and metal rods. On June 29, when Officer Cooper returned to the Cornelios' home,
he saw that the gap in the fence had been covered by a large piece of sheet metal.
On June 29, 2011, police officers searched Cornelio's house pursuant to a warrant.
In a purse in her bedroom they found her identification and papers related to the
December 2010 impounding of Estrella. The papers stated that Estrella had attacked
another dog and bitten that dog's owner. When Officer Cooper checked the Cornelios'
12 yard on June 29, he noted there was an eight-to-ten foot piece of plywood securely bolted
to the east wall of their house and the fence and covering a side gate through which the
dogs had escaped in 2010. Another piece of plywood was leaning against the bolted
plywood.
About one week after the attack, Alba Cornelio told Officers Hoefert, Cooper and
Hernandez that on the day of the attack, she had had gone with Cornelio to the Mendozas'
home. Alba Cornelio said she had comforted Mrs. Mendoza, then felt ill and went home.
Alba Cornelio said she told Cornelio to tell the police she was at work. Alba Cornelio
said she had not been able to nail anything to the fence to cover the hole because when
she had put a table against the fence, Mr. Mendoza had complained that the dogs jumped
up on the table.
A veterinary pathologist performed necropsies on Estrella and Paloma. Estrella's
necropsy revealed she was well-muscled and well-fed, with dog food and grass in her
stomach that she had ingested approximately three-to-four hours, or a little longer, before
being euthanized. Paloma's necropsy showed she was undernourished, with opossum
parts in her stomach that she had eaten three-to-four hours before being euthanized. The
veterinarian who performed Paloma's necropsy rated Paloma's body condition at three on
a scale of nine, with five and six representing optimal condition and one and two
representing starvation. There was evidence Paloma had eaten another mammal in
addition to the opossum. As a lactating female, Paloma would have needed up to eight-
13 to-eleven times the nutrition of a normal dog her size. It appeared Paloma had fed herself
exclusively by hunting, at least for the last two days of her life. The veterinarian found
no evidence of human tissue inside either pit bull.
In her 32 years as an animal control officer, Officer Hoefert had never seen
anything as horrific as Mrs. Mendoza's injuries. Animal Control Officer Hanson, who
was also at the scene, testified this was the first time in his 23-year career he had dealt
with a dog bite that had killed a person. Officer Zeltner said the attack on Mrs. Mendoza
was the worst thing he had ever seen. Officer Cooper testified he had never seen such
severe injuries.
Mrs. Mendoza required a breathing tube and suffered a heart attack as a result of
her injuries. In his 18 years as an orthopedic trauma surgeon, Michael Bongiovanni had
never before seen such extensive trauma. Mrs. Mendoza suffered well over 50 dog bites
and multiple lacerations inflicted in a repetitive or ongoing process. The injuries were
caused by tearing, shearing and ripping with "an unbelievably high amount of force" "
and "a horrendous amount of energy." She suffered injuries to bones and severed nerves
and arteries. Dirt from the scene of the attack was embedded in the wounds.
In the six months after the attack, Mrs. Mendoza underwent about eight surgeries.
She was in constant pain. Surgeons removed all of her devitalized tissue. Dr.
Bongiovanni amputated her left leg below the knee and her left arm below the elbow.
Mrs. Mendoza suffered a severe infection, which then required amputation of her left leg
above the knee and her left arm above the elbow. Dr. Bongiovanni tried to save Mrs.
Mendoza's right leg with grafts and plastic surgery and was able to save her right arm.
14 Mrs. Mendoza was unable to speak for three weeks after the attack and was never
able to return home. After her release from the hospital, she lived in a rehabilitation
facility. In December 2011, a severe infection necessitated amputation of Mrs.
Mendoza's right leg close to the hip. Having lost both of her legs above the knee and her
left arm above the elbow, Mrs. Mendoza became depressed. Her kidneys failed, she
caught pneumonia and she suffered two more heart attacks. On December 24, 2011, Mrs.
Mendoza died in the hospital.
II.
PREEMPTION
Cornelio contends section 399, subdivision (a) (owning an animal that kills a
human being) preempts section 192, subdivision (b) (involuntary manslaughter) because
section 399 is more specific than section 192; both require the defendant to have acted
with gross negligence; and a violation of section 399 will, at least commonly, result in a
violation of section 192, subdivision (b).
"Under the Williamson rule [In re Williamson (1954) 43 Cal.2d 651, 654], if a
general statute includes the same conduct as a special statute, the court infers that the
Legislature intended that conduct to be prosecuted exclusively under the special statute."
(People v. Murphy (2011) 52 Cal.4th 81, 86.) "Absent some indication of legislative
intent to the contrary, the Williamson rule applies when (1) '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
15 commonly result in a violation of the general statute.' [Citation.] In its clearest
application, the rule is triggered when a violation of a provision of the special statute
would inevitably constitute a violation of the general statute." (People v. Murphy, supra,
at p. 86.) There is a strong presumption against preemption. (Farm Raised Salmon
Cases (2008) 42 Cal.4th 1077, 1099.) The party who asserts preemption bears the
burden of demonstrating preemption. (Id. at p. 1088.) In determining whether one code
section preempts another, "we must interpret both pieces of legislation. '[T]he
construction of statutes and the ascertainment of legislative intent are purely questions of
law.' " (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 392.)
As relevant here, section 399, subdivision (a) states: "If any person owning or
having custody or control of a mischievous animal, knowing its propensities, . . . keeps it
without ordinary care, and the animal, . . . 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."
Section 192, subdivision (b) proscribes "the unlawful killing of a human being without
malice . . . in the commission of an unlawful act, not amounting to felony; or in the
commission of a lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection." The People prosecuted the involuntary
16 manslaughter count on the dual theories that Cornelio (1) committed the unlawful acts of
violating section 399, subdivision (a) and two county Ordinances4 and (2) committed the
lawful act of owning dogs. Clearly, section 399, subdivision (a), as relevant here, is more
specific than section 192, subdivision (b).
A violation of section 399, subdivision (a) by keeping an animal "without ordinary
care" will commonly constitute involuntary manslaughter by "the commission of a lawful
act which might produce death, in an unlawful manner, or without due caution and
circumspection." In that instance, both sections require the defendant to have acted with
gross negligence. "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 . . . .' " (Sea Horse Ranch, Inc. v. Superior
Court (1994) 24 Cal.App.4th 446, 454.) Section 399, subdivision (a) " 'requires . . . proof
of "aggravated, culpable, gross, or reckless conduct, which is such a departure from the
conduct of an ordinarily prudent person under the same circumstances as to demonstrate
an indifference to consequences or a disregard of human life." [Citation.] . . . .' (People
4 The ordinances are County of San Diego, Code of Regulatory Ordinances, sections 62.669(a) and 62.669.1(a). The former section states: "A dog's owner or custodian or a person who has control of a dog shall prevent the dog from being at large . . . ." The latter section states: "A dog's owner or custodian or other person having control of a dog shall exercise ordinary care to prevent the dog, while the dog is under the owner, custodian or other person's care, custody or control from . . . [a]ttacking, biting or otherwise causing injury to any person engaged in a lawful act." 17 v. Medlin (2009) 178 Cal.App.4th 1092, 1103 [(Medlin)]; see § 7, subd. (2).)"5 (People
v. Flores (2013) 216 Cal.App.4th 251, 259 (Flores).)
It is self-evident that a violation of section 399, subdivision (a) by keeping a
mischievous dog with criminal negligence will commonly constitute a violation of
section 192, subdivision (b) by the commission of the lawful act of keeping the dog, with
criminal negligence. Thus, section 399, subdivision (a) preempts section 192,
subdivision (b), and Cornelio's conviction under the latter section must be reversed.
III.
SECTION 399, SUBDIVISION (A)
Substantial Evidence
Cornelio contends her two convictions of violating section 399, subdivision (a) are
unsupported by substantial evidence because there was no evidence she acted with
5 In Medlin, supra, 178 Cal.App.4th at page 1092, cited in Flores, supra, 216 Cal.App.4th at page 259, the People appealed after the defendants were found factually innocent of dependent adult abuse likely to produce great bodily injury or death (§ 368, subd. (b)(1)). (Medlin, supra, at p. 1094.) "Violation of section 368, subdivision (b)(1) requires proof of willful conduct that caused a dependent adult to suffer under circumstances likely to produce great bodily harm or death." (Medlin, supra, at p. 1102.) After stating that section 368, subdivision (b)(1) required "criminal negligence," the Medlin court defined that negligence as set forth above in the quotation in Flores. Flores also cited section 7, subdivision (2), which states: "The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context: . . . [¶] . . . The words 'neglect,' 'negligence,' 'negligent,' and 'negligently' import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns." (Flores, supra, 216 Cal.App.4th at p. 259.)
18 criminal negligence in keeping the pit bulls.6 She argues she and her family took
precautions to ensure the dogs stayed in the yard that were objectively and subjectively
reasonable.7
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a
limited one. ' "The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
6 In light of our conclusion that section 399, subdivision (a) preempts section 192, subdivision (b), we need not address Cornelio's contentions that her conviction under the latter section is unsupported by substantial evidence; the court erred in its instructions concerning involuntary manslaughter; and the court abused its discretion in imposing the four-year upper term for involuntary manslaughter. As there was only one error requiring reversal, we need not discuss Cornelio's contention that cumulative errors require reversal.
7 Specifically, Cornelio argues she believed the fence was secure; after the neighbor left the gap in the fence, Mr. Mendoza and the Cornelios closed it and that remedy had been effective for two years; there was no evidence the pit bulls were uncontrollable or had escaped after the December 2010 incident; and after that incident, the Cornelio family securely blocked the point of escape with plywood. These arguments are, in essence, a request that we reweigh the evidence. Cornelio also argues that Officer Hoefert's testimony that Cornelio told her that she had become aware of the hole in the fence about a month earlier was inconsistent with Mr. Mendoza's testimony that the hole had not been there two or three days earlier, and while Mr. Mendoza said the hole was about eight inches wide, Officer Hoefert did not say whether Cornelio specified the size of the hole. Cornelio's knowledge is all that matters; Mr. Mendoza's knowledge is irrelevant. Citing her own statements in the June 19, 2011, interview by Officer Hoefert, Cornelio claims she had been in Florida, where she had graduated from a nursing assistant program and visited family; she had returned to San Diego a week earlier; and she therefore would not have been able to build another fence. In the interview, Cornelio did not say when she went to Florida or how much time she spent there. Her statements during the interview do not support the claim in her brief that she "had spent considerable time" there. In any case, being away from home would not relieve her of her legal duty under section 399, subdivision (a). 19 evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts on which
that determination depends. [Citation.] Thus, if the verdict is supported by substantial
evidence, we must accord due deference to the trier of fact and not substitute our
evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005)
37 Cal.4th 733, 738-739.)
Section 399, subdivision (a) states: "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." " '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.' [Citation.]
Section 399, '[i]n seeking to protect people from fatal attacks by "mischievous"
animals, . . . implies that a "mischievous" animal is one that may be dangerous to others
if allowed to run free or kept in a negligent manner. Knowledge of an animal's
"mischievous propensities" therefore puts an owner on notice of such danger or risk of
20 harm, and his or her liability under the statute arises from the failure to act reasonably
with knowledge of this risk. Consequently, . . . "mischievous propensities" as used in the
statute means those propensities that may naturally pose a risk of harm or injury to
others.' " (Flores, supra, 216 Cal.App.4th at p. 259.)
Here, the court instructed the jury: "To prove that the defendant is guilty of
[violating section 399, subdivision (a)], the People must prove that: [¶] 1. The defendant
owned or had custody or control of a dangerous animal; [¶] 2. The defendant knew that
the animal was dangerous; [¶] 3. The defendant failed to use ordinary care in keeping the
animal; [¶] 4. The animal killed Emako Mendoza while the defendant failed to use
ordinary care in keeping it . . . ." (CALCRIM No. 2950.)8 The court further instructed:
"Using ordinary care means using reasonable care to prevent reasonably foreseeable
harm to someone else. A person fails to use ordinary care if she does something that a
reasonably careful person would not do in the same situation or fails to do something that
a reasonably careful person would do in the same situation." (CALCRIM No. 2950.)
The definition of "ordinary care" in CALCRIM No. 2950 is a statement that
section 399 requires criminal negligence. (Flores, supra, 216 Cal.App.4th at p. 259.)
" 'Criminal negligence requires a gross violation of an existing duty of care. [Citations.]
There must be proof of "aggravated, culpable, gross, or reckless conduct, which is such a
8 The court did not instruct the jury on the statutory alternative to "keep[ing Estrella and Paloma] without ordinary care," i.e., "willfully suffer[ing them] to go at large." (§ 399, subd. (a).) 21 departure from the conduct of an ordinarily prudent person under the same circumstances
as to demonstrate an indifference to consequences or a disregard of human life."
[Citation.] The question is "whether a reasonable person in the defendant's position
would have appreciated the risk his or her conduct posed to human life." [Citation.] The
defendant's subjective awareness is irrelevant.' " (Flores, supra, 216 Cal.App.4th at p.
259.)
"Section 20 provides, 'In every crime or public offense there must exist a union, or
joint operation of act and intent, or criminal negligence.' " (People v. Valdez (2002) 27
Cal.4th 778, 782.) " 'Under the criminal negligence standard, knowledge of the risk is
determined by an objective test: "[I]f a reasonable person in defendant's position would
have been aware of the risk involved, then defendant is presumed to have had such an
awareness." ' " (People v. Linwood (2003) 105 Cal.App.4th 59, 71, quoting Williams v.
Garcetti (1993) 5 Cal.4th 561, 574.) "We realize that the ' "reasonably should have
known" formulation departs somewhat from the usual description of criminal negligence.'
[Citation.] . . . 'Criminal negligence . . . is a standard for determining when an act may
be punished under the penal law because it is such a departure from what would be the
conduct of an ordinarily prudent or careful person under the same circumstances.' "
(People v. Linwood, supra, at pp. 71-72.)
Here, there is substantial evidence of criminal negligence. Cornelio, who owned
and cared for Estrella and Paloma, knew they had a history of escaping from her back
yard. She knew that about six months earlier, in December 2010, they had escaped and
attacked Lopez, and believed the pit bulls had killed Lopez's puppy. Estrella behaved
22 aggressively while impounded after that attack; this was noted on the receipt that
accompanied Estrella upon her release; and papers relating to the impound were later
found in Cornelio's purse. Cornelio knew a member of her family had taken steps to
close the pit bulls' December 2010 escape route. About a month before the June 2011
attack on Mrs. Mendoza, Cornelio learned of another potential escape route, a hole in the
fence, but believed the pit bulls would not escape by that route because the hole was
blocked by a post and boards. Shortly after the attack, Cornelio changed her mind; she
acknowledged that the pit bulls had escaped through the hole to attack Mrs. Mendoza.
Additionally, although Cornelio was responsible for feeding Paloma, Paloma was
undernourished, and a couple of days before the attack, was relying exclusively on
hunting mammals such as opossum to feed herself.
Any effort Cornelio made to keep the pit bulls in her yard paled in comparison to
the effort exerted to protect the Cornelio family from the pit bulls. In contrast to the post
and boards placed against the hole in the fence, the double-fenced enclosure attached to
the back of the house, whose purpose, according to Cornelio, was to prevent the pit bulls
from bothering Alba Cornelio, was extremely sturdy and secure.
As substantial evidence supports the conclusion Cornelio acted with criminal
negligence in keeping the pit bulls, we need not address Cornelio's contention that
CALCRIM No. 2950 is fatally defective because it permitted the jury to find her guilty of
violating section 399, subdivision (a) based on a finding of ordinary, rather than criminal,
negligence, in violation of her constitutional rights.
23 B.
Multiple Violations of Section 399, Subdivision (a)
Cornelio contends because there was only one negligent act, failing to secure the
fence, there was substantial evidence of only one violation of section 399, subdivision
(a).
Cornelio was convicted not because she simply failed to maintain the fence, but
because she failed to take adequate measures to restrain the pit bulls. Such measures
might have included confining both pit bulls to one of the two enclosures within the yard,
tethering them or placing them in a kennel; or by using two different methods of restraint,
one for each dog. The fact that Cornelio chose to rely on the fence as the sole method of
containment for both pit bulls does not mean she committed only one offense. As
discussed above, she was on notice the fence was not sound and she was therefore
required to secure each of the two dogs by other means. She failed to secure either dog
and thus committed two violations of section 399, subdivision (a).
C.
Duty to Repair or Maintain the Fence And The Civil Code Section 841 Instruction
Alba Cornelio's counsel asked the court to instruct the jury pursuant to Civil Code
section 841. Cornelio's counsel did not object. Civil Code section 841, subdivision (a)
states: "Adjoining landowners shall share equally in the responsibility for maintaining
the boundaries and monuments between them." The court instructed the jury:
24 "Coterminous owners are mutually bound equally to maintain: [¶] 1. The boundaries
and monuments between them; [¶] 2. The fences between them[.] [¶] Coterminous
means linked or having the same boundaries."
Cornelio contends there was no substantial evidence she had a duty to repair or
maintain the fence because the Cornelios did not own the property where they lived; Alba
Cornelio was the tenant, not Cornelio; and there was no evidence Cornelio had any legal
right to control the premises. Cornelio concludes the above instruction was
unconstitutional. She also argues that giving the instruction was error because Civil Code
section 841 concerns who is to pay for a fence and does not impose a duty to construct a
fence.
Cornelio misses the point. As noted above, her duty was not simply to maintain
the fence; she was required to prevent the pit bulls from killing Mrs. Mendoza. This
could have been accomplished by various means, such as confining the pit bulls to an
enclosure within the yard. Because Cornelio chose to allow the pit bulls to run freely in
the yard, she was required to ensure the fence was secure enough to contain them,
regardless of whether she would have had a duty to maintain the fence if she had not
owned the pit bulls. In any case, the instruction may have benefited Cornelio by pointing
out that Mrs. Mendoza had a duty to maintain the fence, which the jury might have
considered to be one of "the precautions that the circumstances permitted" (§ 399, subd.
(a)), a requirement for a conviction.
The court also instructed the jury that "[s]ome of these instructions may not apply,
depending on your findings about the facts of the case. Do not assume just because I give
25 a particular instruction that I am suggesting anything about the facts." According to the
terms of the Civil Code section 841 instruction, if the jury found Cornelio was not a
landowner, it would not have found she had a duty to maintain the fence. In that case, the
instruction would have been merely irrelevant.
There was no error.
IV.
VIOLATION OF COUNTY ORDINANCES AS LESSER INCLUDED OFFENSES
Cornelio contends the court committed prejudicial error by failing to instruct on
the lesser included offenses set forth in County of San Diego, Code of Regulatory
Ordinances, sections 62.669(a) and 62.669.1(a). The former section states: "A dog's
owner or custodian or a person who has control of a dog shall prevent the dog from being
at large . . . ." The latter section states: "A dog's owner or custodian or other person
having control of a dog shall exercise ordinary care to prevent the dog, while the dog is
under the owner, custodian or other person's care, custody or control from . . .
[a]ttacking, biting or otherwise causing injury to any person engaged in a lawful act."
" '[A] trial court is not required to instruct the jury as to all lesser included
offenses, only those that "find substantial support in the evidence." [Citation.] In this
context, substantial evidence is evidence from which reasonable jurors could conclude
" 'that the lesser offense, but not the greater, was committed.' " ' " (People v. Elmore
(2014) 59 C4th 121, 153.)
26 As Cornelio concedes in her reply brief, the ordinances here are not lesser
included offenses of section 399, subdivision (a) because the ordinances contain an
element not contained in section 399, subdivision (a): conduct committed only in the
County of San Diego. (People v. Moore (1983) 143 Cal.App.3d 1059, 1067.)
V.
ADMISSION OF EVIDENCE
Photographs
On the first day of trial, the prosecutor sought to introduce into evidence seven
photographs of Mrs. Mendoza's injuries and one autopsy photograph. The prosecutor
argued the photographs taken at the crime scene would accompany Dr. Bongiovanni's
testimony; assist the jury in understanding the nature and extent of the injuries and the
necessary amputations, other surgeries and treatments Mrs. Mendoza underwent in the
six months before her death; and would show how dangerous the dogs were. The autopsy
photograph would assist the jury in understanding the testimony of the medical examiner
and show the ultimate state of Mrs. Mendoza's body. Cornelio moved in limine to
exclude the photographs, arguing they were cumulative, irrelevant and so gruesome as to
be more prejudicial than probative pursuant to Evidence Code section 352. The court
stated it was inclined to admit some of the photographs, but deferred making a ruling
until the next day. The next day, the court did not address the issue. Several days later,
the prosecutor moved to introduce the photographs into evidence. The court asked
27 defense counsel if she objected. Counsel said no. The court admitted the photographs.
Respondent argues that Cornelio has forfeited her right to object to the admission
of the photographs by failing to secure a final ruling. We disagree. "[T]he court's failure
to rule formally, after having reserved the ruling, constitute[s] an implied ruling against
the objection and in favor of admissibility." (People v. Flores (1979) 92 Cal.App.3d 461,
466.)
On the merits, Cornelio now contends the photographs were irrelevant to any
disputed issue because she offered to stipulate that the dogs had attacked Mrs. Mendoza,
resulting in her death; witnesses testified about the results of the attack; and Cornelio "did
not really even contest the . . . 'mischievous' element of the statute" or the pit bulls'
"dangerous propensities." Cornelio argues because she did not personally cause the
injuries, the photographs were not relevant to show intent, and there was no similarly
horrific incident that had occurred previously and of which she was aware. She claims
because the photographs were not relevant, they constituted inadmissible evidence of the
impact on the victims, the Mendoza family. She asserts that even if the photographs were
relevant, they were more prejudicial than probative and should have been excluded
pursuant to Evidence Code section 352, and admission of the photographs rendered the
trial fundamentally unfair.
" 'The admission of photographs of a victim lies within the broad discretion of the
trial court when a claim is made that they are unduly gruesome or inflammatory.
[Citations.] The court's exercise of that discretion will not be disturbed on appeal unless
28 the probative value of the photographs clearly is outweighed by their prejudicial effect.' "
(People v. Virgil (2011) 51 Cal.4th 1210, 1247-1248.) Here, there was no abuse of
discretion.
The photographs depicting the extent of Mrs. Mendoza's injuries were relevant.
Although Cornelio conceded the dog bites caused Mrs. Mendoza's death, in closing
argument Cornelio's attorney minimized the pit bulls' dangerousness. The photographs
were relevant to show the pit bulls were "mischievous" within the meaning of section
399, subdivision (a). Although there was testimony concerning the results of the attack,
the photographs illustrated those results in a way that words could not and brought the
testimony to life. "The defense's offer to stipulate . . . did not negate the relevance of the
photograph. 'The prosecutor " 'was not obliged to prove these details solely from the
testimony of live witnesses' [citation] or to accept antiseptic stipulations in lieu of
photographic evidence. '[T]he jury was entitled to see how the physical details of the
scene and the bod[ies] supported the prosecution theory . . . .' " [Citation.]' (People v.
Crittenden [1994] 9 Cal.4th [83,] 133; see also Old Chief v. United States (1997) 519
U.S. [172, 187], . . . [Conventional evidence, as contrasted with a stipulation, 'tells a
colorful story with descriptive richness . . . . This persuasive power of the concrete and
particular is often essential to the capacity of jurors to satisfy the obligations that the law
places on them.']; People v. Fierro (1991) 1 Cal.4th 173, 222-223 . . . , and cases cited
therein; People v. Edelbacher (1989) 47 Cal.3d 983, 1007 . . . ['The general rule is that
the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect
29 would be to deprive the state's case of its persuasiveness and forcefulness.'].)" (People v.
Scheid (1997) 16 Cal.4th 1, 16-17.) Here, the autopsy photograph, depicting Mrs.
Mendoza after the amputations, was relevant to show the extreme medical measures
required in the attempt to preserve her life. The court did not abuse its discretion by
concluding that although the photographs depicting the trauma inflicted on Mrs. Mendoza
"are as bad as they get," the photographs' probative qualities outweighed any possible
prejudice. Admission of the photographs was not erroneous.
B.
Evidence That Estrella Had Harmed Her Puppies
Alba Cornelio made an out of court statement that Estrella did not want to nurse
Paloma and her litter mates and nipped at them; Alba saw bite marks on the puppies'
heads; and the next day the puppies were dead. After the third puppy died, Alba Cornelio
took care of the fourth puppy, Paloma. According to Cornelio's counsel, this happened
either three or six years before the events at issue here. Cornelio's counsel moved in
limine to exclude evidence Estrella had killed her puppies.9 The court granted the
motion, but said it was "willing to revisit it," "[i]f need be," "[b]ased upon the testimony,
of the evidence as it comes in."
Later, the prosecutor asked the court to reconsider its ruling. Cornelio's counsel
9 Cornelio does not point to any evidence that Estrella had killed her puppies aside from Alba Cornelio's statement.
30 objected. The court concluded it would allow the evidence "as long as it's limited
to . . . this is what [Alba Cornelio] told me." The court stated it would think about what
latitude to give the parties in arguing this evidence.
On direct examination, Hernandez testified that on June 25, 2013, Alba Cornelio
told her the following: "[Alba Cornelio] started noticing that Estrella didn't want to nurse
the puppies and that she would nip at the puppies. And as [Alba] would go out and feed
them and watch over them and take care of them, she started noticing that the puppies
were, in fact dying. [¶] And when she went outside and saw the puppies, she would
notice bite marks on their head. And about a day later, the dogs would be dead; the
puppies would be dead. She also told me that after three of them had died, she took the
last puppy, took it inside the house and fed it and nursed it herself, and that dog was later
Paloma." Hernandez was not cross-examined about this statement. In closing argument,
the prosecutor referred to the statement and said, "You have to think about what you
know about a dog who literally kills its puppies, what kind of notice that put Alba
Cornelio on. About the dog that she kept and the puppy that came from that aggressive
dog. Just one little thing starting very early in time, giving . . . some indication about
what these dog owners are about." Defense counsel did not object to his argument.
Alba Cornelio, not Cornelio, made the statement at issue, and the court expressly
instructed the jury: "You have heard evidence that both defendants made a statement out
of court. You may consider that evidence only against the defendant who made the
statement, not against any other defendant." (CALCRIM No. 305.) We presume the jury
followed this instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
31 Cornelio contends the court did not exercise informed discretion because it was
confused about which litter was the subject of this evidence. During the discussion that
ensued when the prosecutor asked the court to reconsider its ruling, the prosecutor,
followed by Cornelio's counsel, also referred to Alba Cornelio's relinquishment of the
litter in existence at the time of the attack on Mrs. Mendoza. There is no indication the
court was confused about the two litters.
DISPOSITION
The conviction of involuntary manslaughter (Pen. Code, § 192, subd. (b); count
one) is reversed. The matter is remanded for resentencing. In all other respects, the
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.