People v. Tom

231 Cal. Rptr. 3d 350, 22 Cal. App. 5th 250
CourtCalifornia Court of Appeal, 5th District
DecidedApril 13, 2018
DocketC083983
StatusPublished
Cited by18 cases

This text of 231 Cal. Rptr. 3d 350 (People v. Tom) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Tom, 231 Cal. Rptr. 3d 350, 22 Cal. App. 5th 250 (Cal. Ct. App. 2018).

Opinion

RENNER, J.

*252While watching a small dog that belonged to his girlfriend's parents, defendant Jesse Cody Tom beat, stabbed, and strangled the dog. Defendant then covered *352the dead dog with oil and placed it inside a barbeque. Before he could light the deceased dog on fire, however, officers arrived on scene and apprehended defendant after he fled.

A jury convicted defendant of two counts of animal cruelty ( Pen. Code, § 597, subds. (a) -count one, & (b)-count two),1 resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)-count three), and attempted arson (§ 455-count four). The jury found true the special allegation that defendant had personally used a deadly weapon, a broken wine bottle, within the meaning of section 12022, subdivision (b)(1). At a subsequent proceeding, the court found true a prior prison allegation (§ 667.5, subd. (b)), and later sentenced defendant to an aggregate term of five years eight months in state prison.

Defendant does not dispute the facts underlying his convictions, but on appeal he contends that he could not be convicted of violating subdivision (a) and subdivision (b) of section 597, the animal cruelty statute, based on the same act. He further contends the court should have stayed the sentence on his attempted arson offense because his actions were a part of one indivisible course of conduct.

*253Based on the plain language of section 597, we conclude defendant could not be convicted of violating both subdivision (a) and subdivision (b) based on the same conduct. Because the record shows the same conduct served as the basis for both counts, we shall reverse his section 597, subdivision (b) conviction. We further conclude the trial court properly sentenced defendant for the attempted arson offense alleged in count four.

I. BACKGROUND

Defendant does not dispute the evidence, which when viewed in the light most favorable to the judgment, may be summarized as follows:

Robbyn and John owned a small dog named Bailey. When John had to have surgery, they sent the dog to stay with their daughter, Vanessa. At the time, Vanessa was dating defendant; they lived together in Elk Grove.

On July 8, 2015, the neighbor living in the house behind defendant's home heard a dog crying in distress and banging sounds against the fence. The neighbor estimated that he heard the dog crying or screaming for about five to seven minutes. His mother called police. A short time later, the neighbor saw an individual run across his backyard and hop the fence into another neighbor's backyard.

Elk Grove police officers responded to the call that a dog was being beaten in defendant's backyard. Defendant answered the front door when officers knocked. He appeared to have blood on his hand and leg. When asked if there was a dog at the house, defendant claimed there was not. After being asked about the blood on his leg, defendant slammed the door shut and locked it.

Several officers entered the backyard through a side gate to check on the welfare of the dog. They saw multiple dog dishes, water bowls, and dog beds. The back door to the house was open, and officers could hear the sound of glass breaking and a smoke alarm inside the house. Smoke began billowing out the back door. When officers identified themselves as Elk Grove police officers, the back door slammed shut.

A few minutes later, defendant fled from the house, jumping over multiple fences. He was apprehended in a nearby yard and *353arrested following a struggle with officers. Officers then searched the house, but did not locate any people or animals in the home.

Inside, a kitchen stove burner was set to medium and there was white powder, bread, and an oily substance on the burner that were on fire. One of *254the stove knobs had blood on it. A broken wine bottle and an empty bottle of oil with blood smears were also found in the kitchen. Burnt paper towels were in the kitchen sink, which was overflowing with water. Blood was observed on the handle of the back door, the back patio, the rear fence, and a dog bed.

An officer searching the backyard located a deceased small dog, later identified as Bailey, inside a Weber charcoal grill. The dog was lying below the metal grate of the grill.

Defendant was charged in a November 2016 amended information with two counts of animal cruelty ( § 597, subd. (a) -count one (intentional killing of dog); § 597, subd. (b) -count two (needless suffering of dog)), one count of resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1)-count three), and two counts of attempted arson (§ 455-count four (dog) & count five (house).) As to count one, the information alleged defendant personally used a deadly weapon. (§ 12022, subd. (b)(1).) The amended information also alleged that defendant had served a prior prison term. (§ 667.5, subd. (b).)

At trial, veterinarian William Spangler, the prosecution's necropsy and pathology expert, testified about the autopsy he performed on Bailey. Bailey weighed 12 pounds and her fur was matted down and covered with olive oil and charcoal dust. Bailey suffered nine lacerations, including one that caused a notch in the top of her skull. Bailey's wounds were consistent with being stabbed by a broken bottle or broken glass. Bailey also suffered hemorrhaging around her neck, consistent with strangulation. Bailey's oral cavity was coated with blood, which was likely the result of a struggle. The dog had several chipped teeth and a rear molar was found in her stomach. Plant tissue was found in Bailey's lungs, indicating that she had vomited and then inhaled. In Dr. Spangler's opinion, five factors contributed to Bailey's death: strangulation, stab wounds, pulmonary emphysema caused by inhaling material that did not belong in the lungs, choking on foreign material inhaled during the struggle, and a preexisting enlarged heart.

Based on Dr. Spangler's testimony, the prosecutor argued during closing argument that the evidence showed multiple causes of death, including strangulation, multiple lacerations to the dog's face and neck, pulmonary emphysema, inhalation of foreign material into the dog's lungs causing her to choke, and a preexisting enlarged heart. The prosecutor further argued that the same acts-strangulation, stabbing, and choking subjected Bailey to needless suffering and unjustifiable pain.

The jury found defendant guilty of counts one through four and found true the deadly weapon enhancement. Defendant was found not guilty of count *255five. After waiving his right to a jury trial on the prison prior allegation, the court found the allegation true.

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Cite This Page — Counsel Stack

Bluebook (online)
231 Cal. Rptr. 3d 350, 22 Cal. App. 5th 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tom-calctapp5d-2018.