State v. Baniqued

• Citation: 101 Cal.Rptr.2d 835,85 Cal. App. 4th 13
• Court: California Court of Appeals
• Decision Date: 29 November 2000
• Parties: (Cal.App. 3 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. MODESTO RUIZ BANIQUED et al., Defendants and Appellants. C031869 (Sacramento) Filed

101 Cal.Rptr.2d 835 (Cal.App. 3 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. MODESTO RUIZ BANIQUED et al., Defendants and Appellants.

C031869

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Filed 11/29/00

APPEAL from a judgment of the Superior Court of Sacramento County. Ronald Tochterman, Judge. Affirmed.

(Super. Ct. No. 97F06010)

Thomas N. Thomson, attorney for Defendants and Appellants.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

DAVIS, Acting P.J.

Confronting here a scene of undeniable horror, it brings to mind the cogent observation of Mark Twain that "[man] is the only creature that inflicts pain for sport, knowing it to be pain." (Twain [Samuel Langhorne Clemens], Autobiography (1924) vol. II, p. 7.) In this case we hold that a rooster or other bird falls within the statutory definition of "every dumb creature" (Pen. Code, 599b) and thus qualifies as an "animal" for purposes of the animal cruelty statutes found at Penal Code section 597, subdivisions (a) and (b).¹ We therefore affirm the judgments, including defendants' felony convictions under those animal cruelty statutes for crimes related to cockfighting.

PROCEDURAL BACKGROUND

A jury found defendant Modesto Ruiz Baniqued guilty of three felony violations of the animal cruelty statutes: maliciously and intentionally maiming, torturing or wounding living animals, to wit, roosters ( 597, subd. (a), count 1); subjecting animals to needless suffering ( 597, subd. (b), count 2); and cruelly killing live animals, to wit, roosters ( 597, subd. (b), count 3).

Baniqued was also found guilty of four misdemeanors: permitting cocks to fight on premises under his charge or control ( 597b, count 4); owning, possessing, keeping or training birds, to wit, roosters, with the intent that the birds be used in an exhibition of fighting ( 597c, count 5); manufacturing, buying, selling, bartering, exchanging or possessing gaffs, slashers, or other sharp instruments designed to be attached in place of the natural spur of a gamecock or other fighting bird ( 597i, count 6); and owning, possessing or keeping a cock with the intent that it be used or engaged in an exhibition of fighting ( 597j, count 7).

Defendant Gonzalo Mari Bito was found guilty of a felony violation of subjecting animals to needless suffering. ( 597, subd. (b), count 2.)

As to each defendant, the trial court suspended imposition of the sentence and granted four years' formal probation, subject to terms and conditions, and imposed various fines and fees.

FACTUAL BACKGROUND

A.Cockfights at Baniqued's Property

Defendants do not dispute the evidence which, when viewed in the light most favorable to the judgment, may be summarized as follows: At about 9:55 p.m. on July 26, 1997, Sacramento County Sheriff's Department officers received information about cockfights in progress at defendant Baniqued's rural property. The caller stated the cockfights were run by a man named Modesto, which is defendant Baniqued's first name. The dispatch call indicated that about 100 persons were attending the cockfights.

The cockfights were over by the time Officer Jody Tennis reached the scene at about 10:25 p.m. Upon arrival, she went toward a large barn on the property. About five persons who had been standing near the barn entrance ran away as soon as one of the patrol cars approached. The officer identified herself and ordered them to stop, but they ignored her. Three or four of them went inside the barn and closed the door behind them.

Officer Tennis radioed for assistance; an office responded about a minute later. The two officers searched the barn.

When Officer Tennis opened the door, there was a stench that turned her stomach. It smelled like "something burnt had died or something that died burnt." Inside, the officer found numerous half-dead roosters who were bleeding and dying. They had suffered large, gaping wounds. She also found several dead roosters, and there was blood in many places.

The inside of the barn was like a catacomb or maze, with a number of rooms on the ground floor. The first room had a dirt floor and looked like it was used previously as a horse stall. Dead or dying birds were inside. After passing through a long, narrow passageway, the officer found several metal cages containing birds.

Another room had a large pit in a dirt floor. Blood, feathers, and dead birds were in the pit area. There was blood in the center of the pit. Dying birds were on the ground. There were about 30 dead and dying birds, and about 25 live birds. The officer saw a bucket containing birds' feet and legs, and the amount of fresh blood near and on them suggested they had been there only a short time. There were a couple of sacks full of dead roosters. There was also stench in the pit area.

Also in the pit area were a large number of torn pieces of paper with writing on them, which appeared to be betting slips. The officer also found numerous curved, pointed and very sharp knives or gaffs.

Another officer testified that he found gaffs in the barn. "Gaff" is a general term for a weapon attached to a rooster used in cockfighting. He did not know the difference between a gaff and a device known as a "two-inch knife" or "Philippine slasher." The officer found dead birds in the kitchen area of the barn, in barrels, in various pens, and "all over the place." He saw about 50 dead or dying birds. There was a total of about 100 birds in the barn. Some of the live birds were in transportation cases near the pit area. Two detached bird feet were found in a watering or feed dish.

The officers continued searching the barn and ultimately located both defendants and other persons hiding in a room past the kitchen. Bito had blood on his clothing. Baniqued was "covered with blood." Two caged roosters were found inside a Blazer parked at the property. The officers also found a burn barrel that had a stomach-turning smell. There were feathers around the barrel and burnt bird carcasses inside it.

In a statement he gave to an officer on the night of the incident, Baniqued denied any knowledge of cockfighting or dead birds on his property. However, a search revealed several betting slips inside one of Baniqued's pockets. Defendant Bito admitted arriving at 10:00 a.m. to attend the cockfights, that he had seen about 10 fights, and that he had won about $60 gambling on them.

B.Expert Testimony on Cockfighting

Eric Sakach, an employee of the Humane Society of the United States, testified as an expert on cockfighting based on his training and experience. Gaffs or slashers are attached in various ways to the natural spurs on the legs of gamecocks.

The purpose of gaffs or slashers is to inflict lethal wounds. Cockfights usually last only 5 to 10 minutes because the gaffs and slashers cause so much damage to the birds that one or both are mortally wounded fairly quickly.

The most common types of cockfighting in North America involve long-heel or short-heel "gaffs." "Gaffs" are implements resembling curved ice picks or needles, which are attached to both legs of the bird. Another kind of cockfighting involves what is known as a "long knife" or "Filipino slasher," which is a knife two and one-half to three and one-half inches long. These slashers are attached only to one leg of the rooster. "Short knife" or "Mexican slasher" cockfighting uses a knife that is one to three inches long. Another variety uses a "postiza," which is shaped like a hollowed-out natural spur but is very sharp and made of light steel or hawksbill turtle shell.

Gaffs tend to cause puncture wounds. In contrast, slashers tend to lay the bird open, causing more visible injuries and more profuse bleeding. Sakach examined photographs of roosters found at the scene and opined that they showed "laid-open" wounds consistent with those inflicted by cockfighting with slashers. He also identified implements found at the barn as Filipino slashers and a Mexican slasher. There were no gaffs or postizas found at the scene.

In the weeks leading up to a cockfight, the birds are typically put through a rigorous training, exercise and conditioning program called a "keep." Roosters are sparred against each other using so-called "sparring muffs." The muffs are made of leather or vinyl, resemble miniature boxing gloves, and fit over the rooster's natural spurs. The muffs can be weighted so that the birds increase their strength by sparring.

Sparring helps determine the birds' aggressiveness, and also gets the birds used to being handled and facing other birds. Sometimes, instead of having roosters fight with muffs, a "cull cock" or "junk" bird is swung in front of the rooster being trained so that it learns to attack a bird coming at it above ground. Immediately before a fight, cockfighters often withhold water from the birds to reduce bleeding.

Normal barnyard roosters will fight each other, but generally not to the death because the younger bird will quit. Gamecocks are specially bred to be highly aggressive. Thus, gamecocks will fight much longer than other birds will, and that can lead them to acquire severe injuries. Because some gamecocks will try to quit and run, they are fought in a pit to prevent escape.

Sakach testified that cockfighting causes the birds to experience and manifest stress, pain, and suffering. Many signs of pain are very obvious, such as when cuts and wounds are present, but signs of stress may be more subtle. The birds may ruffle their feathers, partly or completely close their eyes, refuse food, favor the injured part of the body, and exhibit lassitude.

The July 26, 1997, cockfights involved here occurred late in the cockfighting season, in the hotter months when birds...