People v. Mirelez

• Decision Date: 15 June 2011
• Docket Number: E049575
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ISAAC JOSEPH MIRELEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ISAAC JOSEPH MIRELEZ, Defendant and Appellant.

E049575

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Dated: June 15, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. INF061662)

OPINION

APPEAL from the Superior Court of Riverside County. Christine V. Pate, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Susan K. Marr, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Heather F. Crawford, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION¹

A jury convicted defendant Isaac Joseph Mirelez of four counts of animal cruelty (§ 597, subd. (a)), including personal use of a firearm (§ 12022.5, subd. (a)), after he shot his neighbor's four pit bulls. The jury further found true that defendant had one prior strike conviction (§ 667, subds. (c), (e)(1)) and two prior felony convictions. (§ 1203, subd. (e)(4).) The court sentenced defendant to a total prison term of eight years.

On appeal, defendant charges the trial court committed various instructional errors regarding the meaning of malice, abatement of a public nuisance, self-defense, defense of another, and necessity. All of defendant's arguments are a variation on the theme that defendant was privileged to shoot the dogs because they were dangerous. We reject defendant's contentions and affirm the judgment.

II

FACTUAL BACKGROUND

The subject events took place in the Landon Lane neighborhood on the Torres-Martinez Indian reservation in Thermal, California. On March 6, 2008, defendant shot four pit bulls that had previously attacked two neighbors, Terran Torro (Torro) and Samantha Bullchild (Bullchild). Two dogs died.

Cory Wilson (Wilson), the owner of four pit bulls, named Ruth, Ruby, Cherry, and Pizza, had lived on Landon Lane across the street from defendant for five years.Wilson's property had a five-foot chain link fence and locking gates. Wilson had two young children, ages five and seven, whom he allowed to be around the dogs.

A. The Previous Incidents

Torro testified that the gates on Wilson's property were often open and the dogs acted aggressively toward passersby. Wilson's dogs had chased Torro twice. Torro asserted that Wilson had once slashed the throat of his own dog, Pizza, and that Wilson threw rocks at the dogs.

One day near sunset, Torro was standing outside his cousin's house, across the street from Wilson's yard. As Torro lit a cigarette, two of Wilson's pit bulls jumped at his neck. He tried to evade them but they continued attacking him. He grabbed a broomstick and hit the dogs while banging on his cousin's door until he could escape inside. The bite on his arm severed a muscle and required stitches. After the attack, Torro protected himself against the dogs by carrying a car antennae as a weapon. As Wilson described the incident with Torro, Torro had entered Wilson's yard when he was bitten on the arm.

Another neighbor, Bullchild, testified that she was afraid of the dogs because they had barked at her previously. Bullchild said other people in the neighborhood were concerned about the dogs' viciousness. The sheriff's department had said it could not take action because there was no leash law in effect on the reservation.

On the evening of February 28, 2008, as Bullchild walked past Wilson's property, she was attacked by the dogs who came from behind the driveway gate. They bit her three or four times on her wrist, ankle, and leg. She screamed and called for Wilson torescue her. When Wilson whistled at the dogs, they returned to the yard. Her wounds were bleeding and her father called an ambulance. She received treatment at a hospital. Wilson acknowledged he had heard Bullchild scream but he claimed his dogs were in the yard barking when he responded to her cries for help. Bullchild was crying and had a bite on her arm and leg. Wilson offered to take her to the hospital.

Wilson claimed that he had never seen the dogs attack anyone although defendant had complained to the tribal housing authority they had chased him. Wilson believed that defendant had provoked aggressive behavior in the dogs. One dog had been injured by a crossbow arrow Wilson found in his yard. Wilson also found BB pellet wounds on the dogs.

B. The Shooting on March 6, 2008

Lawrence Smith (Smith) also lived on Landon Lane. He believed Wilson's dogs had a reputation for viciousness. Although the dogs never attacked Smith, they had acted aggressively toward defendant when he walked by the Wilson property.

On March 6, 2008, Smith was working in a neighbor's backyard at around 1:00 p.m. when he saw defendant standing outside Wilson's fence, armed with a .22 rifle. Smith saw and heard the four dogs barking in Wilson's yard. Smith heard gunshots. Smith yelled at Defendant, "'What the fuck are you doing shooting Cory's dogs?'" Defendant responded, "'I'm going to kill all them fucking dogs.'"

Wilson came home and found blood in his yard, on the sidewalk, the front porch, and the driveway. The four dogs were bleeding from bullet wounds and ultimately two died.

Isaac White, a Riverside County sheriff's deputy, testified he responded to a call at 2:18 p.m. White contacted Wilson in his front yard. One pit bull was already dead and the others were injured. A second dog apparently died later.

III

ANALYSIS

Defendant was charged with animal cruelty under section 597, subdivision (a). This subdivision requires that the defendant act "maliciously and intentionally." Section 7 defines "malice" in general as "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, . . ." (§ 7, par. 4.)

Defendant's arguments on appeal are encapsulated in the following passage:

"The defense case depended entirely upon demonstrating some justification for appellant's actions. Accordingly, the defense evidence and testimony was directed toward showing the vicious nature of the . . . dogs and their propensity to escape from their yard and attack passers-by without provocation. Defense counsel submitted several proposed instructions to direct the jurors['] attention to the nature of these dogs and also to provide other possible explanations for the shootings. Defense counsel hoped to persuade the jury that there was at least a reasonable doubt as to whether appellant shot the dogs maliciously, i.e., solely out of a desire to inflict pain or injury. The proposed defense instructions on self-defense, necessity, and abatement of a public nuisance supplied other possible explanations for appellant's conduct."

We review instructional error independently as a mixed question of law and fact and without according deference to the trial court's decision on whether to give aparticular instruction. (People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Cole (2004) 33 Cal.4th 1158, 1217.)

A. Instructional Error on the Malice Element of Animal Cruelty

Defendant contends that the trial court misinstructed the jury regarding the malice element of animal cruelty. Based on CALJIC No. 14.96, the court instructed the jury that animal cruelty required that defendant have acted "maliciously":

"Every person who unlawfully and maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal is guilty of a violation of Penal Code section 597, subdivision (a), a crime.

[¶] . . . [¶]

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

"1. A person unlawfully and with the specific intent to do so, maimed, mutilated, tortured or wounded a living animal or killed an animal; and "2. The person acted maliciously."

The court declined to instruct the jury on an exception to section 597, subdivision (a), which is provided at section 599(c): ". . . nor must this title be construed as interfering with the right to destroy . . . any animal known as dangerous to life, limb, or property, . . ." Defense counsel did not object.

The court then instructed: "The words 'malice' and 'maliciously' mean a wish to vex, annoy, or injure a living animal, or an intent to do a wrongful act." (CALJIC No. 1.22.) Defense counsel argued that "merely injuring an animal is not necessary[ily] malicious," using as examples of "non-malicious injury" a veterinarian who euthanizesan animal and the employees of a slaughter-house. The court rejected that argument, as well as defense counsel's request that the instruction on malice be changed to read "a wish to vex, annoy, or injure a living animal, and an intent to do a wrongful act."

In closing argument, the prosecutor argued that the jury could not consider evidence of the pit bulls' viciousness.

As a preliminary matter, we agree with the People that defendant has waived any appellate claim regarding the instruction based on CALJIC No. 14.96. (People v. Burnett (2003) 110 Cal.App.4th 868, 875.) The Use Note for CALJIC No. 14.96 states: "If there is an issue raised concerning section 597, subdivision (c), or section 599c, special instructions will have to be devised." Defense counsel did not ask for the court to include any pinpoint instruction based on the exception afforded by section 599c. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.) Furthermore, the exception stated in section 599c "applies only to specific animals known to pose a danger to life, limb or property"...