People v. Flores, 216 Cal. App. 4th 251, 156 Cal. Rptr.

3d 648 (2013)

Parties:
The People of California (Plaintiff and Respondent)
Armando Gonzales Flores (Defendant and Appellant)

Procedural History:
1. A jury in the Superior Court of Sonoma County found the defendant guilty of a felony for
violating Cal. Pen. Code § 399.
2. Defendants appeal – judgment affirmed.
3. Review by the Supreme Court petitioned by respondent – denied.

Facts: On December 12, 2011, William Siemsen was sitting in his front yard when a pit bull,
Blue, came from next door, attacking Siemsen’s Labrador, Luna. Blue broke free from his chain
in defendant’s open yard. Officer Stephen Bussell drove by, witnessing Blue chasing Luna in
front of Siemsen’s home. Officer Bussell saw Blue repeatedly attack Luna and bite Siemsen at
least once below the knee. Officer Bussell told defendant to secure Blue in a vehicle parked at
defendant’s home; defendant complied.

Sonoma County animal control officer Jeff Clemens responded to the scene, describing Blue’s
behavior as “[v]ery concerning,” because he was “[extremely large and] displayed certain body
language that was very, very obvious that it was a dangerous, dangerous animal.”

Blue behaved violently three times prior to attacking Siemsen. On June 29, 2011, James
Bertolini was walking his dog on a leash when Blue charged toward them and started biting the
dog. Defendant approached with a leash and attempted to control Blue, which took a couple
minutes. Bertolini described Blue as being “really aggressive.” Bertolini’s wife contacted animal
control and made a report.

On August 8, 2011, Kathleen Tryer had her dog on a leash and encountered defendant and Blue
on a pathway. While she was passing by, Blue pulled the leash and “literally dragged” defendant
toward Tryer and her dog. Even with the leash, defendant could not stop Blue from biting
Tryer’s dog. A friend picked up Tryer’s dog and defendant managed to pull Blue back. Tryer
called animal control to report the incident.

On October 28, 2011, defendant opened his door and Blue escaped, chasing after neighbor Ruth
Richardson and her company. Richardson hid inside her home but, Blue “viciously” attacked her
metal security screen door. Richardson said Blue was “very aggressive,” “very strong,” and she
had “no doubt” Blue would have killed her if she had a regular screen door. According to
Richardson, defendant could not control Blue.

On June 30, 2011, Sonoma County animal control officer Justin Foster issued a warning to
defendant, which advised that “[a] potentially dangerous animal, while on the owner’s premises,
shall, at all times, be kept indoors, or in a secure enclosure.”
On November 3, 2011, defendant agreed to designate Blue as a potentially dangerous animal.
Officer Foster testified that he was unsure whether he told defendant that Blue must be muzzled
whenever off the owner’s property, or that Blue must wear a collar indicating that he is a
potentially dangerous animal, or that defendant was required to post a sign at his residence
indicating a potentially dangerous animal was at the premises.

Issue: Did defendant fail to exercise ordinary care when keeping a mischievous animal, knowing
the animal’s prior history of aggression?

Holding: Yes. Defendant failed to exercise ordinary care when keeping a mischievous animal
with a known history of aggression.

Rule of Law: Keeping a large, mischievous dog with a known propensity for aggression in such
a manner that allows him to escape from being chained in an open yard is an inadequate exercise
of ordinary care under Cal. Pen. Code § 399 subd. b.

Reasoning:
1. People v. Berry establishes that those who know their animals are “mischievous” but
allow them to run free or keep them in a negligent manner are liable if their animal harms
someone. “Mischievous” means the animal may naturally pose a risk of harm or injury to
others. Defendant knew Blue was potentially dangerous, yet kept him unmuzzled in an
open yard where he broke free from his chain.
2. CALCRIM No. 2950 defines “ordinary care” as “using reasonable care to prevent
reasonably foreseeable harm to someone else. A person fails to use ordinary care if
he...fails to do something that a reasonably careful person would do in the same
situation.” Flores did not exercise ordinary care when he failed to comply with the
necessary precautions for keeping a potentially dangerous animal.
3. According to People v. Medlin, criminal negligence requires a gross violation of an
existing duty of care. The question is “whether a reasonable person in the defendant’s
position would have appreciated the risk his conduct posed to human life.” Flores was
criminally negligent when he failed to ensure Blue would not harm others.

Judgment: The judgment is affirmed.th 251, 156 Cal. Rptr. 3d 648 (2013)