California Court of Appeal for the Sixth District
256 Cal. Rptr. 344 (1989)
James Soto was the two-and-a-half-year-old neighbor of Berry (defendant.). One day, James’s mother left him playing outside their house for a short time while she went inside. When she returned to the patio, James was missing. She searched for him for about five minutes and found out James had been attacked by Berry’s pit-bull dog, named Willy. James’s father had witnessed the attack and yelled for Berry, who removed the dog from the child. James died shortly after. Berry was charged with: (1) James Soto’s murder, (2) negligent keeping of a mischievous animal that kills a human being, in violation of California’s penal code § 399, (3) marijuana cultivation, and (4) misdemeanor keeping of a fighting dog. It does not appear that Willy had ever attacked a person before, but there was evidence that he was bred and trained as a fighting dog, which meant he presented some threat to humans. Berry had purchased Willy from a fighting-dog breeder and was made aware of Willy’s capabilities as a fighting dog and remarkably strong jaw. Police also found pamphlets and correspondence with Willy’s breeder, showing that Berry had a thorough familiarity with the subject of dog fighting. An animal-control officer, who was an expert on fighting dogs, testified that pit-bull dogs are selectively bred to be aggressive. James’s mother testified that Berry had told her Willy was dangerous, but she did not need to worry, because he was kept inside a fence. While there was a fence where the dog was tied, it did not create an enclosure or block a person from entering the area the dog could reach. The police also found over 240 marijuana plants growing behind Berry’s house, which Willy was apparently guarding. Berry filed a writ of prohibition, seeking dismissal of the murder charge, arguing that there was insufficient evidence to establish implied malice.
Rule of Law
Holding and Reasoning (Agliano, J.)
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