People v. Alvarado

• Decision Date: 20 January 2005
• Docket Number: No. D043471.,D043471.
• Citation: 23 Cal.Rptr.3d 391,125 Cal.App.4th 1179
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuel ALVARADO, Defendant and Appellant.

23 Cal.Rptr.3d 391

125 Cal.App.4th 1179

The PEOPLE, Plaintiff and Respondent, v. Manuel ALVARADO, Defendant and Appellant.

No. D043471.

Court of Appeal, Fourth District, Division 1.

January 20, 2005.

Rehearing Denied January 27, 2005.

Review Denied April 27, 2005.

Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holley A. Hoffman and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

NARES, Acting P.J.

The issue presented in this case is one of first impression: Is the crime of animal cruelty, as defined in Penal Code section 597, subdivision (a),¹ a general or specific intent crime? We conclude, based upon the language of the statute, relevant California authority, and persuasive out-of-state authority, that section 597, subdivision (a) describes a general intent crime.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2002 Manuel Alvarado lived with his girlfriend, Mary Duarte, and her brother, Gregory Ballew, in a small studio apartment located on an estate in Fallbrook owned by Roy Johnson. Because Alvarado did various work projects at the estate, Johnson did not charge them rent for the apartment. Alvarado and Duarte had two dogs, a three-year-old Dalmatian named Pyro and a seven-month-old Chow-Labrador mix named Gizmo, and Ballew had a Pekinese named Dixie, all of which also lived in the apartment.

On December 6, 2002, Alvarado and Ballew were at the apartment while Duarte was at work. During the day, the men split an 18-pack of beer. That evening, they went to a bar in Rainbow, a nearby town, and drank a pitcher of beer. After the bartender refused to serve Alvarado any more alcohol, Alvarado drove himself and Ballew home. Arriving back at the apartment, Alvarado went inside while Ballew stayed outside to smoke.

After approximately 30 minutes, Ballew went into the apartment and discovered overturned furniture and specks of blood on the floor. Alvarado was in the bathroom, which had blood on the floor and the toilet. He was crying and mumbling as he rinsed Gizmo, who was in the bathtub bleeding. Ballew punched Alvarado in the back of the head, saying, "What the fuck did you do?" and shoved Alvarado, causing Alvarado to fall back onto the toilet. Ballew grabbed Dixie and the cordless phone and ran outside, where he hid in the bushes and called his ex-girlfriend for a ride.

The ex-girlfriend's daughter picked Ballew up and took him to Duarte's work-place. Drunk and angry, Ballew told Duarte that Alvarado was killing Gizmo and demanded that she call the sheriff's department. Duarte called a coworker to come relieve her so she could go home, but the coworker was not available for several hours. Duarte called the apartment four or five times, but no one answered, so she called the sheriff's department just after 10 p.m.

About a half hour later, Alvarado showed up at Duarte's workplace, crying uncontrollably and saying that Pyro was dead. When Duarte asked what had happened to Pyro, Alvarado just kept repeating that his "baby" was dead, although he ultimately told Duarte that he had thrown Pyro's body by the shed. Duarte told Alvarado to go home and that she would join him once her coworker arrived. Just after Alvarado left, Duarte called the sheriff's department again.

Deputy Sheriffs William Anderson and Daniel Perkins went to the apartment and found Alvarado standing in the driveway, near the front door. Alvarado smelled of alcohol, but did not appear to be under the influence, and seemed unconcerned that the officers were there to check on a dog. Alvarado took the officers inside and into the bathroom, where Gizmo was "cowering" in the bathtub, vomiting, bleeding, wet and obviously in pain. Gizmo would not come to Alvarado when he called, so the officers were skeptical about Alvarado's statements that Gizmo was his dog.

Deputy Anderson called Duarte to ask her if Gizmo was friendly and Duarte told him about Pyro, whom Alvarado had not previously mentioned to the officers. Alvarado indicated he did not know where Pyro was; however, he later changed his story twice, first saying that the dog was having a "timeout" in the bathroom and later that the dog must have run away. Alvarado took the officers to certain sheds on the property, but not the one where Officer Perkins subsequently found Pyro's body. Alvarado did not show any reaction when the officers took him to see the dead dog. Although Alvarado continued to deny that he had injured Pyro or Gizmo, the officers arrested him. They searched for a knife or a blunt object that Alvarado might have used against the dogs, but did not find anything, although several weeks later Ballew found a butcher knife that had animal hair and canine blood on it in a bathroom cabinet.

Gizmo died several days after the attack and the deputies had veterinarians perform necropsies on the dogs' bodies. The necropsies showed that the dogs had both suffered multiple stab wounds, which were fatal in Pyro's case, and that Gizmo had also suffered blunt force trauma that caused a massive tissue breakdown and, in turn, a fatal multi-organ failure.

In late January 2003 the district attorney filed an information charging Alvarado with two counts of animal cruelty. Trial commenced in May 2003, but the court declared a mistrial after the jury was unable to reach a verdict. At the second trial, the jury convicted Alvarado of both counts and the court sentenced him to two years in prison.

DISCUSSION

A. Background

At trial, the court instructed the jury that:

"Defendant is accused in Counts 1 and 2 of having violated Section 597[, subdivision] (a) of the Penal Code, a crime. Every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal or maliciously and intentionally kills an animal is guilty of a violation of section 597[, subdivision] (a).

"In order to prove this crime, each of the following elements must be proved:

"One, a person maimed, mutilated, tortured, wounded, or killed a living animal; and, two, the person who committed the maiming, mutilation, torture, wounding or killing did so intentionally and maliciously."

The court also instructed the jury with modified versions of CALJIC Nos. 3.30, 3.31.5 and 1.22, respectively:

"In the crimes charged in Counts 1 and 2 ... there must exist a union or joint operation of act or conduct and general criminal intent.

"General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful." (See CALJIC No. 3.30.)

"In the crimes charged in Counts 1 and 2 ... there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists, the crime to which it relates is not committed. The mental state required is included in the definition of the crime set forth elsewhere in these instructions.

"In the crime of animal cruelty, the necessary mental state is maliciously [sic]." (See CALJIC No. 3.31.5.)

"The words malice and maliciously mean a wish—to vex, annoy, or injure or an intent to do a wrong act." (See CALJIC No. 1.22.)

Alvarado contends that the court erred in so instructing the jury because the instructions did not require the jury to find that he acted with the specific intent to maim, mutilate, torture, wound or kill a living animal.

B. Waiver

The Attorney General preliminarily responds that Alvarado has waived any challenge to the giving of modified instructions on section 597, subdivision (a) and CALJIC No. 3.31.5 because he failed to object to the giving of those instructions below. He essentially concedes, however, that Alvarado has not waived a challenge to the giving of CALJIC No. 3.30, a concession with which we agree. The law imposes on a trial court the sua sponte duty to properly instruct the jury on the relevant law and, as such, requires the giving of a correct instruction regarding the intent necessary to commit the offense and the union between that intent and the defendant's act or conduct. (See People v. Cummings (1993) 4 Cal.4th 1233, 1311-1312, 18 Cal.Rptr.2d 796, 850 P.2d 1; see generally People v. Garcia (2001) 25 Cal.4th 744, 754, 107 Cal.Rptr.2d 355, 23 P.3d 590 [describing the required union as so basic "`that it is an invariable element of every crime unless excluded expressly or by necessary implication'"].) Given the interwoven nature of the challenged instructions at issue relating to the requisite mental state, we cannot conclude that Alvarado waived his right to challenge any of the instructions, particularly given that "`the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016, 68 Cal.Rptr.2d 648, 945 P.2d 1197.)

C. Analysis

Section 597, subdivision (a) provides in part:

"[E]very person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense punishable by imprisonment in the state prison, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment, or, alternatively, by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment." (Italics added.)

Prior to its amendment in 1986, section 597, subdivision (a) did not contain the element that an offender must "intentionally" maim, mutilate, torture, wound or kill a living animal. Rather, it only required that the offender commit the act "malic...