Opinion
C079340
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. BRIAN MICHAEL HRENKO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF125618A)
Defendant Brian Michael Hrenko's dog (Russia) killed victim Claudia Alicia Gallardo. A jury found defendant guilty of involuntary manslaughter and suffering a mischievous animal to go at large, killing a person. (Pen. Code, §§ 192, subd. (b); 399, subd. (a).) The trial court sentenced him to prison for a total unstayed term of four years, and defendant timely filed this appeal.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends no substantial evidence supports either count. We disagree and affirm the judgment.
BACKGROUND
Trial Testimony
We describe the trial evidence in the light most favorably to the verdicts. (See People v. Abilez (2007) 41 Cal.4th 472, 504.)
Defendant mentions photographs of the victim, but heads no argument that their admission was error, thereby forfeiting such claim. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) We note other photographs were excluded by the trial court's exercise of discretion.
The exhibits and testimony show some members of defendant's family lived in two houses (420 and 444 North Lillian Street, Stockton) arranged as a sort of compound, with fencing enclosing both properties, although the fencing varied in height and type. Someone entering the property from the street would first have to cross a low fence, of under four feet in height. Deeper into the property was six-foot fencing with a gate. Various relatives lived in the houses.
Jill Ann Kambestad testified she sold items at a flea market with defendant. She had been to where he lived and had occasionally stayed overnight there. There were two dogs on the property where he lived, Sirius and Russia. She described Sirius as a grey pit bull and Russia as a reddish-brown bull-mastiff. Defendant had told her Russia had been aggressive with his wife Gloria's dog, Cossack. Although Kambestad had never seen the two dogs fight, she saw scars on Cossack's chest from those fights. Defendant told her it was hard to break them apart and once he had had to "choke Russia out."
On April 11, 2013, the flea market closed at 5 p.m., and Kambestad and defendant returned to the compound by about 6 p.m. At some point defendant told Kambestad he was going on an errand and would return in a few minutes. He shut the gate by bringing both sides together and using a horseshoe-shaped clip that connected the end poles, and used a post that went into the ground. Defendant had never told her there was a problem with securing that gate, or that a chain was needed, but she was familiar with the style of gate and how it was supposed to work. After defendant left, Kambestad heard a voice calling "hello," thought it was Gloria, and after about 10 to 15 minutes when no one came to the house went to the inner gate. The victim, Gallardo, was inside the short, outer fence and waiting at the inner six-foot fence.
Two weeks before, defendant had met the victim at a friend's house and had discussed with her whether she would be willing to work at the compound. The victim had agreed to prepare a contract and get in touch with defendant when it was completed, although her visit was not necessarily planned for that evening.
Kambestad came through the gate and "set the pole down and the latch over" to close it. The women talked about cleaning (which was apparently the work the victim was contracting to do there), smoked cigarettes, and then the victim hugged Kambestad.
At that moment, "Russia hit the gate, attacked [the victim] from behind, and tugged her away from me." Kambestad was unable to get Russia off the victim, and he began "chewing her up." The victim punched Russia in the nose and swore at him, but that made things worse; Kambestad may also have punched Russia, but she could not remember. A neighbor arrived and hit Russia with a tree branch, or a stick, to no avail.
Deputies Rocky Bulen and Robert North arrived at the scene shortly after 8 p.m., and found the victim dead. About 10 feet behind her was a chain-link fence six feet high, and Russia was on the other side of that fence; the gate was ajar, and Bulen had to hold it closed. Enclosing the back of the property was a mixed chain-link and wood fence, also six-feet high. Despite all the activity, Russia "never growled, never barked at us. It looked like it was just exhausted, just sitting there." Bulen testified that even after he closed the gate it did not feel securely shut, so he stood by it to make sure Russia could not escape. An animal control officer shot Russia with a tranquilizer gun, with no apparent effect, then snared him with "catch poles," without him resisting or showing aggression.
Near the gate on the chain-link fence was a placard with a silhouette of a Doberman Pinscher's head with jaws open and large teeth, a type of "beware of dog" sign, although that placard had no words on it. No other dog warning signs were found on the property.
Russia was unneutered, which made him more likely to be aggressive. At one point while in animal control custody, Russia managed to get over a 10-foot fence; after that, he was kept in an enclosed kennel.
At some point after the killing, Kambestad stayed at Gloria's house for about three months, during which time defendant was very upset, even tearful, about losing Russia, but defendant expressed nothing about the victim. He did discuss thinking about breaking Russia out of the pound.
Defendant's wife testified Cossack (a male Queensland Heeler and pit bull mix) and Russia would fight, and Cossack had a scarred chest as a result. Generally defendant would keep Russia behind the "big" fence and "[p]eriodically" kept him chained up or in a garage. She described the gate as a "Cyclone gate and pole goes in the ground and you secure it." Russia got into a neighbor's yard a couple of times, but she thought defendant eventually fixed whatever the problem was with containment. She never saw Russia do anything but "play, play, play" with people. The couple had 15 grandchildren, some living on the property, and there was never any problem with Russia and the children.
A neighbor, Rita Vasquez, testified two pit bulls from defendant's property would jump the fence and enter her property "on an ongoing basis," and she saw bite marks on her now-deceased husband's boots. A detective testified Vasquez described one of the dogs as a brown pit bull, i.e., Russia. Once Vasquez took her dog to the veterinarian after it was attacked, and she would not let her grandchildren play in the yard because the pit bulls would chase them.
Another neighbor, Joel Martinez Jaimez, testified he, too, had trouble; within two weeks before the victim's mauling, Russia came on to his property four times, and twice attacked his dog, a St. Bernard about twice Russia's size. After the first time he warned defendant, and defendant said he would be careful. After the second attack, when Martinez took his dog to the veterinarian, he asked defendant to pay the bill, but when defendant said he did not have the money Martinez did not renew the request. Martinez saw Russia jumping the fence.
Another neighbor, Joseph Sanchez, testified Russia would get out "every once in a while" and Sanchez would make loud noises or throw rocks to try to repel him. He spoke to some of the young people at the house and told them "they needed to lock up their dogs" or he would call the police, but he was ignored. He described the dog to a detective as a "large brown pit bull."
Another neighbor, Vincent Simard, testified he was walking his Labrador by defendant's house when Russia came up "aggressively staring at my dog." He had seen Russia out on the street before, and also barking in the yard. Once Russia chased his truck and got a hold of his tire and bit the tire while Simard was driving the truck down the street.
Another neighbor, Jerrod Wentzell, testified that during the summer of 2012, Russia jumped out of defendant's truck and attacked Wentzell's dog Princess, who was half Russia's size, pinning her down to the ground by her neck, but not actually biting her or causing physical harm to her.
Detective Lawrence Gardiman interviewed defendant after midnight, and again later that next day. According to the transcripts, defendant said he got up early the prior morning to load his truck and trailer with "stuff to take to the flea market" where he spent the day with Kambestad, returning home about 4 or 4:30 p.m. When he arrived again later after the attack, he was told someone who was supposed to clean the house was attacked, but he knew nothing about that. He said he had been burglarized "numerous" times the past month. He described Russia as about 90-95 pounds, and said that he had owned him for two and a half years. He admitted Russia "went after people that have came [sic] on the property. But never really hurt nobody really bad." Russia did knock one man into a swimming pool, but defendant had never been cited by animal control. Russia was "very protective of the property" and of defendant's grandson. Russia had fought with neighborhood dogs. Russia could open the gate by flipping the latch unless the gate was chained, but defendant did not chain it that night because Kambestad was there. However, he conceded "She don't know him that good and know how to control him." Russia could get out of the property, and had done so in the past. During the second interview, defendant admitted Russia once "nipped" his grandson's girlfriend, leaving a scratch. He had heard from his wife that while he was in jail, Russia knocked one man into the pool, and chased another into a tree. He was not sure he told Kambestad to secure the gate "but I mighta told her that. I should have, I know that." (Italics added.) Several times Russia jumped the neighbor's six-foot fence. He admitted a neighbor sought damages of $700 from defendant for veterinary treatment for a St. Bernard that Russia attacked, but the neighbor ultimately dropped the claim.
Detective Gardiman found the gate rod that is designed to go into the ground was blocked by dirt and gravel "so that the rod . . . would not be able to slide down . . . and the gate could not be locked." When he shut the gate with the horseshoe-shaped latch, it "easily swung open." There was a bungee cord on one side of the gate, but no chains.
The pathologist, Dr. Bennet Omalu, testified that out of over 8,000 autopsies he had performed only about 10 involved dog maulings. The 38-year-old victim was of "small stature," weighing 120 pounds and being 59 inches tall, and the front part of her neck was "completely avulsed," meaning "completely torn out and mutilated." There were other injuries all over her body consistent with an aggressive mauling attack, including "a big tooth laceration where the animal grabbed her scalp and almost sheared it apart." But the neck injury was "an immediately fatal injury. There was nothing she could have done." She may have lived for five to ten minutes, but would not have been fully conscious. He found no defensive wounds, and she was "very easily overwhelmed by the dog. So she did not see it coming."
The defense called several witnesses who described Russia as well-behaved. Defendant did not testify.
Closing Arguments
The prosecutor argued defendant knew Russia was dangerous and wanted Russia to be dangerous, to protect his property and family. He knew Russia could climb a six-foot fence, or open the gate, but did not ensure the gate was securely fastened. The only warning sign was on the inner gate. Kambestad, the person left in charge, had no way to know the gate was not safely closed, reflecting defendant's criminal negligence; "he left the dog in the care of somebody that didn't know the dog, that didn't know the condition of the property. It is not a reasonable thing to do."
Defense counsel did not dispute that Russia had "gotten off the property" and had fought other dogs. The victim came over the smaller gate in front of the property and walked back toward the six-foot gate, calling out "hello." It was dark; when the victim hugged Kambestad, Russia attacked. Although defendant often chained Russia up, he did not do so on this occasion, nor was there any need for him to do so, because he knew Kambestad would be there. This showed defendant did not act with criminal negligence in securing his dog, even if he was a dangerous dog. Kambestad had known Russia for a few weeks, would play with him, and did not know Russia would be able to barge through the gate. Russia was not aggressive with the law enforcement or animal control officers. The prior instances of Russia acting badly were unlike what happened that night, and some witnesses hedged or gave inconsistent testimony about which dog from defendant's property was involved in specific incidents. Defendant's wife, a reluctant witness, testified Russia generally was well-behaved. When Russia saw an unfamiliar person hugging Kambestad, he acted in response to what he interpreted as an attack on her. The victim unreasonably entered the property over the smaller fence by the street, ignoring warning signs when she had not been invited onto the property. The "bungee cord" was actually a chain covered in plastic or rubber, similar to those used with bicycle chains, consistent with defendant's statement that he chained the gate. The jury found defendant guilty of both counts.
DISCUSSION
I
Involuntary Manslaughter
Section 192 provides in relevant part that "Manslaughter is the unlawful killing of a human being without malice. It is of three kinds. [¶] . . . [¶] (b) Involuntary--in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (Italics added.)
The jury was instructed that the People had to prove defendant committed a lawful act in a criminally negligent manner, causing a person's death. The lawful act alleged was that defendant "owned, kept, or maintained a dangerous animal," an animal "that may be dangerous to others if allowed to run free or kept in a negligent manner." Criminal negligence was defined in part as reckless action creating "a high risk of death or great bodily injury" "so different from the way an ordinarily careful person would act in the same situation that his act amounts to disregard for human life or indifference to the consequences of that act."
Defendant's several sub-contentions regarding the evidence, which we will address in a moment, fail because he portrays the evidence and reasonable inferences therefrom in the light most favorably to him, rather than in the light most favorably to the jury verdict. (Cf. People v. Abilez, supra, 41 Cal.4th at p. 504.)
Defendant concedes--as he must--that there was evidence Russia was dangerous. He contends the fences he erected, his repairs to that fencing after a neighbor complained, and the warning sign, coupled with his habit of chaining the gate, show that he acted responsibly with respect to controlling Russia.
Defendant repeatedly states on appeal that there were multiple warning signs on the property, but the jury did not have to believe the testimony of his wife that multiple signs were present rather than the conflicting testimony that only the one warning sign previously described was found.
Defendant relies in part on Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446 (Sea Horse), which arose after a section 995 motion to dismiss, but on inspection we find the case bolsters the case for criminal liability herein.
In Sea Horse, several of the defendant's horses escaped to an adjacent highway, and one horse collided with a motorist, causing a fatality. (Sea Horse, supra, 24 Cal.App.4th at p. 450.) The fencing was old and rotted, with boards missing; "so dilapidated that when the officer leaned on a cross board, it fell off. . . . Contrary to common practice, there was no wire strung along the inside of the fence to keep horses away from the cross boards," nor had the defendant built a fence along the front boundary with the highway, where the collision occurred. (Id. at p. 451) There was a history of horses escaping from the property. (Ibid.) We find the following passage illuminating.
"The People . . . make the not unreasonable argument that under the circumstances of this case, the apparent long-standing disrepair of the fence and the escapes of the horses amount to criminal negligence. The People note the extremely dilapidated condition of the fence; the improper construction of the fence; the failure to follow the common practice of installing some kind of wire to keep the horses away from the fence; the failure to have a 'fallback' measure of a perimeter fence on the border with the highway to keep horses off the road; and the fact that the horses were continually escaping near a busy highway.
"The People then put these omissions in context: 'These mistakes might not have been so damning had the Ranch not been so close to a major thoroughfare or had it not kept animals as large as horses. Here, however, the Ranch abutted Highway One, a road with a 50 mph speed limit and without any street lighting. [Citation.] Moreover, it [was] not possible to see the horses on the
road without special lights. [Citation.]' When one factors in the numerous previous escapes of horses onto the highway, the People's argument is not unsound. The condition of the fence, the keeping of large animals near a poorly lit highway, and the prior escape problems can give rise to an awareness that these factors were creating a high risk of harm in disregard of human life and safety, particularly to motorists on the highway.
"We stress here the history of the prior horse escapes at the Ranch. We are not dealing with an isolated occurrence of a headstrong animal finding its way to a highway and causing harm. We are not dealing with a hapless horse owner facing criminal liability for the first time an equine escapes its fold. The facts of this case, as presented at the preliminary hearing, show that the Ranch has a substantial history of escaping horses. This key fact, coupled with the condition of the fence and its proximity to a major highway, is sufficient to establish probable cause that criminal negligence occurred." (Sea Horse, at p. 455.)
Here, there was abundant evidence--including from defendant's own statements to Detective Gardimer--that Russia was dangerous and capable of escaping the property either by jumping the fences or by opening the flimsy gate unless it was chained, and defendant conceded he did not chain it that night. Defendant's inculpatory statements were corroborated by neighbors who testified Russia escaped many times and attacked or menaced other dogs and people and even bit the tire of a moving truck. A fence is only as strong as its weakest point, which was a gate defendant knew Russia could breach absent a chain. Defendant knew he had not chained the fence that night, and was unsure what instructions about the gate and dog he gave to Kambestad.
Defendant contends Kambestad's and the victim's own negligence caused the victim's death, not any failings on his part. He relies on a passage of one of his statements to Detective Gardiman that he had instructed Kambestad to make sure the hole for the rod was not filled with dirt, which would prevent the rod from securing the gate. But he hedged and said he "mighta" and "should have" told her. The jury did not have to believe that he gave clear instructions to Kambestad, but could have instead believed Kambestad's testimony that defendant never told her Russia could escape and never showed her how to close that gate or that a chain was necessary to secure it.
As for the victim, defendant characterizes her actions as "reckless," in that she "entered a locked and gated property uninvited," remained on the property for some time, ignoring the dog warning sign, and then "unexpectedly wrapped her arms around Kambestad in a way that could only have been interpreted" by Russia as hostile, presumably justifying a protective attack. This argument, too, draws inferences against the verdict. The exterior, low fence was easily crossed by anyone who wanted to do so and there was no evidence the victim saw the sign in the dark. There is nothing unexpected about an uninvited person (religious tract distributors, Girl Scout cookie sellers, political aspirants, etc.) entering an urbanized yard to talk to occupants.
Further, defendant admitted to Detective Gardiman that he knew the victim, had recently discussed having her give defendant a bid to clean the house, and that she told him she would come by with a contract in a few days. Thus, although the victim did not have an appointment to see defendant that particular evening, to characterize her as a stranger or trespasser does not portray the facts fairly. The jury could find the victim was doing what she had discussed with defendant; returning to his house with more information about a house-cleaning contract, and therefore was a permissive visitor to the property. This was corroborated by Kambestad's testimony that she was discussing house-cleaning with the victim just before the attack.
To the extent defendant contends the victim's death was an unfortunate accident, the jury was instructed on the defense of accident and rejected that defense. On this record, that was rational, for all the reasons stated above.
II
Mischievous Animal at Large
Section 399, subdivision (a) provides in full:
"If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with
ordinary care, kills any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, [the person] is guilty of a felony."
"California does not criminalize mere ownership of a pit bull or any similar animal. However, if a person knows his or her animal is mischievous and fails to exercise ordinary care, and as a result a human being suffers serious bodily injury or death, that person may be prosecuted pursuant to" section 399. (People v. Flores (2013) 216 Cal.App.4th 251, 253.) "The basic purpose of section 399 is to protect people against fatal attacks by 'mischievous animals,' where the victim is in no way at fault for the attack. [Citation] It does so by punishing those who know their animals are 'mischievous' but allow them to run free or keep them in a negligent manner." (People v. Berry (1991) 1 Cal.App.4th 778, 783.)
As to this count, the jury was instructed the People had to prove defendant had custody of an animal he knew was dangerous, failed to use ordinary care in keeping the animal, the animal killed the victim, and the victim "took all the precautions that a reasonable person would have taken in the same situation."
On appeal, as discussed generally ante, defendant concedes there was evidence Russia had mischievous tendencies and that defendant knew it, but contends he "took great efforts to control his dog and keep him safely and securely housed." He argues there was no evidence Russia was "seriously dangerous to humans" but instead Russia was merely "protective of his family." That was belied by contrary trial evidence.
As recounted above, there were many instances in which Russia leapt the fence and engaged in behavior threatening to other dogs and humans, such as chasing the truck of a neighbor and biting its tire, and menacing another neighbor's grandchildren. Further, defendant admitted to Detective Gardiman that he was aware Russia had knocked a man into a pool, chased another into a tree, and "nipped" at a third person.
The defendant in Flores, like defendant herein, admitted that he knew his dog (Blue) had attacked other dogs before, and had acted "aggressively toward other dogs and people," and evidence of several prior instances was introduced at trial. (People v. Flores, 216 Cal.App.4th at pp. 259, 254-256.) Unlike in this case, Blue had been designated by animal control as a potentially dangerous animal. (Id. at p. 257.) Flores took some steps to keep Blue secure, but Flores held: "There was overwhelming evidence that Blue's aggressiveness, combined with his massive strength and power, made him uncontrollable and a danger to the public" and "[d]espite the positive steps that defendant took to secure Blue, on this record, the jury could reasonably infer that defendant's efforts were wholly inadequate. By all accounts, Blue was a very powerful and aggressive dog that had the ability to overpower defendant and to injure anyone or anything in his path. Although Blue had been restrained by a 'big chain,' there was unimpeded, unsupervised access to Blue. Accordingly, we conclude substantial evidence supports the jury's finding that defendant failed to act as a reasonably careful person would in the same situation." (Id. at p. 260.)
Defendant contends there is no evidence he failed to use ordinary care in keeping Russia, but again, this overlooks the contrary evidence and the reasonable inferences flowing therefrom. The evidence showed the pole that was supposed to secure the gate did not function, and there was testimony Russia knew how to open the upper (horseshoe-shaped) latch of the gate, and also evidence he could jump a six-foot fence, and had done so repeatedly. Because any steps already taken to contain Russia did not succeed in doing so, a reasonably prudent person aware of Russia's tendencies would have taken additional steps.
Here, although Russia does not appear to have been as vicious as Blue, the jury could rationally find the inadequately high fence and poorly maintained gate mechanism were "wholly inadequate" to contain Russia. It could also rationally conclude that defendant did not take steps to instruct Kambestad on the need to clear the hole of debris to accept the securing rod for the gate and to chain the gate while defendant was away.
Defendant again faults the victim, arguing she did not take "all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation" as provided by section 399. This views the evidence in defendant's favor. True, it was dark and the victim apparently crossed the low fence by the sidewalk. But she had spoken with defendant about returning to discuss a house-cleaning contract, and she and Kambestad spoke about house-cleaning and shared cigarettes, a perfectly amicable exchange between the victim and the person apparently in charge of the property. The jury could rationally find that the victim was impliedly welcome to enter the property, that there was nothing unusual about her speaking with Kambestad and sharing a cigarette, nor anything improper about giving Kambestad a friendly hug. Although defendant calls this a perceived "surprise" and "hostile gesture," Kambestad did not testify the hug was uninvited or unwelcome. The victim may not have seen the dog warning sign, nor understood it meant there was a dog capable of breaching the six-foot gate on the property. She was attacked outside the gated area without warning as the dog broke through suddenly, in what Dr. Omalu described as a quick mauling, after which "There was nothing she could have done." On this record, the jury could find the victim did act as a reasonable person in her situation would have acted.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Hoch, J.