People v. Thomason

Citation101 Cal.Rptr.2d 247,84 Cal.App.4th 1064
CourtCalifornia Court of Appeals
Decision Date30 October 2000
Parties(Cal.App. 2 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. GARY L. THOMASON, Defendant and Appellant. B139424 Filed

APPEAL from a judgment of the Superior Court of Los Angeles County. Theodore D. Piatt, Judge. Affirmed.

(Los Angeles County Super. Ct. No. KA045586)

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

LILLIE, P.J.

The issue of defendant's guilt was submitted to the trial court on the testimony taken at the preliminary hearing and a videotape received in evidence. It found defendant guilty of three felony counts of cruelty to animals (mice, rats, newborn mice) in violation of Penal Code section 597, subdivision (a).1 He appeals from the judgment. We affirm.

STATEMENT OF FACTS

On information from a Ventura County District Attorney Investigator who had learned, through a chat room and subsequent conversation with defendant, that he had produced a "crush video"2 depicting rats, mice and baby mice ("pinkies") being crushed and killed by a female under heel of her shoe, Officer William Le Baron and other officers conducted a search of defendant's apartment for any evidence of his production and distribution of videos. Officer LeBaron found 30 or 40 videos in defendant's closet, then asked defendant for the crush video he had filmed with co-defendant Diane Aileen Chaffin. Defendant told the officer the videotape was with the others and labeled "Diane." Officer LeBaron found two "Diane" videotapes which, defendant stated, had been filmed at the home of Chaffin's parents. Other items seized were defendant's computer containing chat room conversations relating to crush videos, clips taken from crush videos and still images.

The videotape in evidence is 60 minutes long and shows Chaffin crushing numerous mice, baby mice and rats under the heel of her shoe and under her bare feet. Part of the videotape depicts a mouse being held down and Chaffin crushing the animal to death; the mice and rats were "stepped on to the point where intestines and innards are torn apart and taken out of them. It is then smashed into the ground until the mouse or rat or pinkie appears to be dead and it stops moving." Involved were 12 animals consisting of four mice, six baby mice and two rats. They were all taunted, maimed, tortured, mutilated, disemboweled and ultimately slowly killed under the heel of a shoe. The videotape depicts Chaffin stepping on the shoulder of a mouse with the heel of her shoe, causing the mouse to spin in circles, then Chaffin crushing its head. In one instance a mouse is taped down by its tail to prevent escape before being crushed to death. These videotapes were produced by co-defendant Chaffin and defendant to sell for profit. Defendant obtained the animals from The Feed Barn, a store that sells feeder mice used to feed other animals.

I PENAL CODE SECTION 597, SUBDIVISION (a) APPLIES TO DEFENDANT

Appellant contends that Penal Code section 597, subdivision (a), does not apply to rodents which are different from animals within the meaning of the statute in that they may be killed at any time by any means because they represent a health and property hazard and are "known as dangerous to life or property" (Pen. Code, 599c), thus, are exempt under Penal Code section 597, subdivision (a).

Penal Code section 597, subdivision (a) in pertinent part provides: "Except as provided in subdivision (c) of this section or Section 599c, every 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 . . . ."

Penal Code section 599c provides: "No part of this title shall be construed as interfering with any of the laws of the state known as the 'game laws,' or any laws for or against the destruction of certain birds, nor must this title be construed as interfering with the right to destroy any venomous reptile, or any animal known as dangerous to life, limb, or property, or to interfere with the right to kill all animals used for food, or with properly conducted scientific experiments or investigations performed under the authority of the faculty of a regularly incorporated medical college or university of this state."

Penal Code section 599b provides in part: "In this title, the word 'animal' includes every dumb creature; the words 'torment,' 'torture,' and 'cruelty,' include every act, omission, or neglect, whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted . . . ."

Penal Code section 597, subdivision (a), makes it unlawful to mistreat any "living animal," which applies to rodents, and the term "animal" includes every "dumb creature" (Pen. Code, 599b) which also applies to rodents, and appellant does not contend otherwise. And no reasonable person can argue that the malicious and intentional "'torment,' 'torture,' and 'cruelty,'" defined in Penal Code section 599b and as applied here, did not cause "unnecessary or unjustifiable physical pain or suffering" to the mice, rats and baby mice. However, appellant contends that rodents are "animal[s] known as dangerous to life, limb, or property" under section 599c, and have been "historically treated" as such "because of the disease they carry [i.e., bubonic plague, hantavirus])," and "may be eradicated anytime using any means," referring to traps and poison commonly used by homeowners and restaurants to kill mice and rats. As to this defendant, we reject the contention.

First, "any living animal" (Pen. Code, 597, subd. (a)) used in various state cruelty to animals statutes applies to domesticated animals and wild animals in captivity (State v. Cleve (N.M. 1999) 980 P.2d 23, 27), raccoons and any dumb living creature (Wilkerson v. State (Fla. 1981) 401 So.2d 1110, 1111), and any dumb creature (State v. Kaneakua (Hawaii 1979) 597 P.2d 590, 592). Both parties agree, as do we, there is no California case in point, and this is a case of first impression.

Second, the rats, mice and baby mice used by defendant in his crush video were not wild animals, but bred for a domestic purpose--food for other animals. However, they were not used by defendant for this purpose, but to intentionally and maliciously maim, mutilate, torture and wound before ultimately slowly killing them, all for sexual gratification of others and for commercial gain. They differ from the rodents that run wild--rats and mice, denizens of alleys, garbage cans, and sewers--that carry disease to restaurants and households and destroy property. The rats and mice used by defendant were not wild nor were they destroyed by him as hazardous to health or property. He obtained the animals from "The Feed Barn," a store which sells feeder mice used to feed other animals. These bred rats and mice do not run wild but are kept in cages, and are not "dangerous to life, limb or property." They clearly do not fall within the exception described in Penal Code section 599c.

Nor does Penal Code section 599c permit the destruction of all mice and rats, wild or bred, by "using any means," as contended by him. Penal Code section 599c applies only to specific animals known to pose a danger to life, limb or property. Among them are not the animals used by defendant bred and raised in captivity. We belabor this point because this, too, is the reason Food and Agriculture Code section 5401, relied on by appellant, does not support his argument that all rats and mice "may be eradicated anytime." This section provides that "[a]ny premises . . . which are infected or infested with any pest, or premises where any pest is found, are a public nuisance . . . ." This statute cannot apply to defendant under the evidence in this case. Here the rats and mice cannot be classified as "pests" because they were bred and kept in cages; there was no "infestation" of any "premises," for defendant purchased them and voluntarily brought them to Chaffin's home where the video was made, not to eradicate as a public nuisance, but for the private purpose to intentionally and maliciously torture, maim, mutilate wound and ultimately kill.

Nor does Health and Safety Code section 116125 aid appellant. This section, too, requires one possessing "any place that is infested with rodents" to destroy them "by poisoning, trapping, and other appropriate means." Appellant argues that "crushing rodents is not proscribed" therefore, what he did "was clearly lawful." "Appropriate means" to eradicate the "pests" surely does not include "any means available" as urged by appellant, nor does it embrace maliciously and intentionally maiming, taunting, torturing, wounding and disemboweling before crushing the mutilated animal to a slow death. But the fallacy in appellant's argument as to the applicability of both of the above sections is that the evidence does not support the necessary premise that the rats and mice were killed for health and safety purposes. The facts are, that they were voluntarily brought to the "premises" or "place" to make crush videos, and were ultimately killed after maiming, torturing and mutilating the animals, all for profit and for the sexual gratification of others.

Third, even if the bred mice and rats used by defendant could be classified as animals "known as...

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