Opinion
E066340
02-28-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARITY ELLEN WILSON, Defendant and Appellant.
Robert L. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1400257) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed as modified. Robert L. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
On May 6, 2016, a jury found defendant and appellant Charity Ellen Wilson guilty of felony animal cruelty (Pen. Code, § 597, subd. (b)) and misdemeanor neglect of an animal (§ 597.1, subd. (a)). Defendant was granted three years of felony probation and was ordered into the custody of Riverside County Sheriff for 120 days, 119 days to be served in the work release program. She appeals, contending there was insufficient evidence to support both of her convictions, and that there were errors in the jury instructions. In addition, defendant asserts that the court imposed an unauthorized sentence and an overbroad residence approval probation condition. We agree that the residence approval probation condition must be modified. We reject her other claims and affirm.
All statutory references are to the Penal Code unless otherwise stated.
I. FACTUAL BACKGROUND
On August 14, 2013, Sergeant Lesley Huennekens of the Riverside County Department of Animal Services (Animal Services) responded to a complaint about a sick mare in Temecula. Sergeant Huennekens described the mare as skeletal with "very prominent" bones, a "severe skin ailment" causing hair loss and crusty patches of skin. Her hooves were very overgrown and "in dire need of being trimmed." The sergeant met Darryl Williams, defendant's spouse who confirmed that defendant owned the mare, and spoke with defendant. Defendant stated that a veterinarian had diagnosed the horse with an allergy and that she had received medication to fight the ailment. The sergeant learned that a veterinarian had been retained in June by the owner of the property where the mare was being kept. The veterinarian thought the mare was suffering from an autoimmune disease that required further veterinary treatment, and possibly euthanasia.
On August 16, 2013, an Animal Services officer served a Notice of Violation directing defendant to have the mare seen by a veterinarian within three days. The officer described the mare as suffering from shedding hair, blackened and crusty skin, lesions, pustules, and swelling joints. On August 22, 2013, Sergeant Huennekens spoke with defendant, who said she would be making a veterinarian appointment by August 26, 2013. Five days later, the sergeant returned to the property and found the mare in the same poor condition. Defendant said the mare had "sweet itch," which is an allergy to the saliva from the bite of a fly, and that she would have the mare examined by a veterinarian by September 5, 2013.
On September 12, 2013, the Animal Services officer returned to the property and found that the mare remained in poor condition. Four days later, Sergeant Huennekens found the mare's condition to be the same, and served a "Notice of Preseizure of Animals," providing defendant with 48 hours to request a hearing. On September 17, 2013, defendant informed the sergeant that the mare had been moved to Apple Valley in San Bernardino County, but she did not know the address. The sergeant made many calls to defendant, and left messages asking for the Apple Valley address; however, defendant did not answer or return any of the calls.
In 2013, defendant contacted a nonprofit horse rescue organization and explained the situation with Animal Services. Defendant said she was treating her mare for sweet itch, and the officers with Animal Services "did not know what they were doing." She admitted she had not consulted a veterinarian, and asked the rescue organization to house the mare so it would not be seized; it declined.
In 2013, Robin Jones was living on a 35-acre ranch in Winchester. She noticed an older, thin-looking mare in a corner area of the property approximately a quarter mile away. After searching for the owner, Jones spoke with defendant on the phone approximately 10-12 times because she "never saw her on the property." Jones offered to board and feed the mare, if defendant would provide the feed. A closer look at the mare revealed that she was suffering with a terrible skin problem all over her body; "[h]er eyes were almost swollen shut, she had scabs, she had pustules, she was weeping." Defendant "eventually" agreed to let Jones take care of the mare, but defendant said that the mare had sweet itch and that she was the only person who knew how to care for the horse. She asserted the veterinarians did not know how to take care of her. Defendant insisted that the mare eat only the pellets she provided, but she only provided one bag. Jones bathed the mare, washed and medicated her legs, and then wrapped them to keep them clean and infection free and to keep the flies off.
On the second day Jones had the mare, she called defendant to express concern the mare "was really in bad condition" with a fever, and needed to be seen by a veterinarian. Defendant said she would come out and see the mare, reiterating that she was the only person who knew "how to fix the horse." Defendant arrived two days later, she removed the bandages from the mare's legs and told Jones not to bandage them because the wraps were taking off the skin. When defendant left, she took all of the supplies, including the wraps, leaving Jones with nothing, not even fly spray, to protect the mare from all of the flies. That was the only time Jones was aware of defendant visiting the mare at Jones's property. Jones thought the mare's legs had been improving with daily baths and wrapping.
On October 7, 2013, Sergeant Huennekens met with Jones in Winchester. The sergeant saw the same sick mare she had previously seen in August, and the decision was made to seize her. As they were coaxing her into the trailer, her "skin was literally sloughing off." After the mare was impounded, Dr. Allan Drusys, Chief Veterinarian for Animal Services with 15 years of experience in his present position and 20 years as an equine practitioner, observed the mare to be "grossly underweight" with her ribs being visible, and suffering from a skin condition covering most of her body. She had open sores and areas that looked like they had been scratched repeatedly. The mare was given a medicated bath, oral antibiotics, and fed good alfalfa hay.
On October 8, 2013, the sergeant posted a "Notice of Postseizure" on the property, providing 10 days to request a hearing. Williams requested a hearing and testified that he owned the mare, her name was Escapade, and she was 22 years old. He stated the mare's condition began to deteriorate in March 2013, and he was treating it with motor oil, which he described as a homeopathic remedy. By the end of the hearing, the decision was made to euthanize the mare.
At defendant's trial, Dr. Drusys testified that the mare's low weight was "probably from a lack of quality and quantity of feed"; however, the owner did not cause the horse's disease and that there is no cure for it, only palliative treatments. He opined that it would have taken many months for the mare to get to the condition she was in, and she was suffering. Although he did not believe the mare was likely to die "imminently," he believed she was "in quite a bad strait." In his opinion, the mare should have been examined by a veterinarian months before she was seized, and the failure to have her treated by a licensed veterinarian was a "gross departure from the way an ordinarily careful person would act." The doctor said euthanizing the mare was a "righteous decision," because she was suffering.
A necropsy of the mare concluded that she suffered from pemphigus foliaceus, an autoimmune skin disease. The disease causes blisters, hair loss, and open sores, and "sometimes they'll scratch themselves raw."
II. DISCUSSION
A. Substantial Evidence Supports the Jury's Findings That Defendant's Actions Amounted to Animal Cruelty and Misdemeanor Animal Neglect.
Section 597, subdivision (b), proscribes cruelty to animals in general, and provides categories of conduct such as overdriving, overloading, torturing, tormenting, or cruelly beating an animal; depriving an animal of necessary food and water; or inflicting needless suffering or unnecessary cruelty. (§ 597, subd. (b); People v. Speegle (1997) 53 Cal.App.4th 1405, 1412-1413.) Section 597.1 makes it a misdemeanor for any owner or keeper of an animal to "permit[] the animal to be in any building, enclosure, lane, street, square, or lot of any city, county, city and county, or judicial district without proper care . . . ." (§ 597.1, subd. (a)(1).) Defendant contends there was insufficient evidence that she violated either of these statutes. We conclude substantial evidence supports the jury's verdicts.
When reviewing a claim of insufficient evidence, we examine "'"the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.) If the circumstances reasonably justify the verdict, we will not reverse merely because the evidence might reasonably support a contrary finding. (Ibid.)
Citing People v. Riazati (2011) 195 Cal.App.4th 514 (Riazati), defendant contends her convictions must be reversed because there is no evidence that she acted with gross negligence and created a high risk that Escapade would suffer great bodily injury or death. Defendant's reliance on Riazati is misplaced. In that case, the defendant hoarded approximately 90 animals, including dogs, rabbits, and birds, in unsanitary conditions inside his house and yard. (Id. at pp. 517-519.) The floors of the house and animal cages were covered in urine and feces. The animals were kept in a confined space, which led to them injuring each other, and they had no access to clean water. (Id. at pp. 516-523.) Under the facts of the case, the reviewing court found an "issue of first impression presented here of whether criminal liability under section 597(b) may be imposed on a person who has custody of, or is responsible for providing care to, an animal and commits an act or omission proscribed by that subdivision that recklessly exposes the animal to a high risk of great bodily injury." (Id. at p. 531.)
Here, defendant was not charged with animal cruelty or misdemeanor animal neglect for denying her mare proper food, drink, or shelter that created a high risk of great bodily injury. Rather, she was charged with causing Escapade needless suffering (animal cruelty) and failing to provide the appropriate medication, attention, and the proper feed (animal neglect).
In relevant part, section 597, subdivision (b), provides: "Except as otherwise provided in subdivision (a) or (c), every person who . . . having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering . . . is . . . guilty of a crime punishable pursuant to subdivision (d)." (§ 597, subd. (b), italics added.) As defined in section 597, subdivision (b), cruelty to animals does not require proof that defendant's act or omission must have created a high risk of death or great bodily injury to an animal. It is sufficient to show that the defendant's acts subjected the animal to needless suffering. The same is true for the charge of misdemeanor animal neglect: Section 597.1, subdivision (a)(1), in relevant part, provides: "Every owner . . . of any animal who permits the animal to be in any building, enclosure, lane, street, square, or lot of any city, county, or judicial district without proper care and attention is guilty of a misdemeanor." (§ 597.1, subd. (a)(1), italics added.)
The evidence in this case shows that the mare's condition began to deteriorate in March 2013. By June 2013, the owner of the property where the mare was being kept, retained a veterinarian who opined that the mare was suffering from an autoimmune disease that required further veterinary treatment, and possibly euthanasia. From this evidence, the jury could reasonably infer that in June 2013, the mare was exhibiting objective signs of distress. Animal Services became involved in August 2013 and ordered defendant to have the mare seen by a veterinarian. Defendant failed to do so. Instead, she relocated the horse and refused to disclose the new location. When Jones noticed the mare, she attempted to help, but realized the need to retain a veterinarian. Defendant refused to do so and refused to allow Jones to treat the mare. Jones called Animal Services and the decision was made to seize the mare.
Dr. Drusys described Escapade as "grossly underweight" and suffering from a skin disease makes for a "very uncomfortable condition." He opined that it would have taken many months for her to deteriorate into that condition. To alleviate the mare's symptoms, the doctor started treating her with medicated baths, giving her antibiotics, and feeding her good alfalfa hay. Defendant's contention that Dr. Drusys confirmed there was nothing she did to cause the disease, that there was no cure, and that some palliative treatments could prove lethal, missed the point. "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) "'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1054.)
The circumstances in this case reasonably justify the jury's conclusions that (1) defendant knew she subjected her mare to months of needless suffering by ignoring others' repeated pleas and orders to have the mare examined and treated by a veterinarian, and (2) she failed to provide proper care. She was charged with animal cruelty for letting her mare suffer the symptoms of the autoimmune skin disease when palliative treatment was available. She was charged with misdemeanor animal neglect for failing to provide the veterinary treatment the mare needed. Substantial evidence supports the jury's verdicts.
B. The Jury Was Properly Instructed on the Charges.
Defendant contends the trial court improperly instructed the jury on the elements of animal cruelty "by erroneously describing the risk that [she] must create as a result of her criminal negligence in order for liability to attach." She argues that the jury should have been instructed with CALJIC No. 14.97. Similarly, she asserts the trial court improperly instructed the jury on the elements of animal neglect by "failing to inform the jury that [her] failure to provide proper care and attention must not only amount to criminal negligence, but must also have created a high risk of great bodily injury or death to Escapade." Like her insufficiency of evidence claims relating to both charges, these claims are premised upon the creation of a high risk of great bodily injury or death being added as a necessary element. As stated above, we reject such premise and, accordingly, these claims.
A person may be guilty of animal cruelty for denying an animal proper food, drink, or shelter that created a high risk of great bodily injury. (Riazati, supra, 195 Cal.App.4th at p. 531.) However, that was not the charge or the People's theory of the case. Defendant was charged with animal cruelty for subjecting her mare to needless suffering. The trial court properly instructed on this theory of the case.
A person may be guilty of misdemeanor animal neglect for failing to provide an animal with proper care and attention. The instruction to the jury tracked the language in the statute. (§ 597.1, subd. (a)(1).) "The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification." (People v. Poggi (1988) 45 Cal.3d 306, 327.) The prosecutor represented to the court that he had emailed the proposed instruction to defense counsel. The trial court asked if the proposed instruction was acceptable. Defense counsel responded in the affirmative, failing to request amplification. The trial court properly instructed the jury on all of the elements of misdemeanor animal neglect.
"The defendants are charged in Count 2 with Failure to Provide for an Animal in violation of Penal Code section 597.1[, subd.] (a).
"To prove that the defendants are guilty of this crime, the People must prove:
"(1) The defendants owned, drove, or kept an animal; and
"(2) The defendants permitted the animal to be in an enclosure, square, or lot without proper care and attention."
C. Unanimity Instruction Was Not Necessary.
Defendant contends that her conviction for misdemeanor animal neglect must be reversed because the trial court failed to give a unanimity instruction. She claims that because she boarded the mare in Temecula, and then in Winchester, the jurors should have been instructed that they had to reach a unanimous agreement as to where and when the mare failed to receive proper care. We disagree.
"A unanimous jury verdict is required in criminal cases. [Citations.]" (People v. Sanchez (2001) 94 Cal.App.4th 622, 631 (Sanchez).) "[T]he unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (People v. Russo (2001) 25 Cal.4th 1124, 1135.)
When the conviction does not rest on a choice of specific acts, but upon a continuous course of conduct, a unanimity instruction is not required. (Sanchez, supra, 94 Cal.App.4th at pp. 633-635.) In Sanchez, the defendant challenged the trial court's failure to provide a unanimity instruction with respect to six counts of animal cruelty charged as violations of section 597, subdivision (b). (Sanchez, supra, at p. 625.) With respect to five counts, based on evidence that the defendant failed to provide adequate food and water for his animals, the reviewing court held that the trial court was not required to provide such an instruction. (Id. at pp. 634-635.) The court explained that "animal abuse as defined in section 597, subdivision (b), by inflicting unnecessary cruelty or needless suffering on an animal, may be committed as a continuous course of conduct, and when so committed requires no unanimity instruction. When a violation of the subdivision is committed by failing to provide food, water, and shelter to an animal, it is necessarily a continuing offense and a unanimity instruction is not required." (Id. at p. 633, italics added.) However, "while animal cruelty may be committed by a continuous course of conduct, it may also be committed by a single act of abuse such as by kicking or beating an animal." (Id. at p. 634, italics added.) Because the remaining count of animal cruelty was based on evidence of two incidents in which the defendant kicked his dog, "each sufficient to support a conviction under section 597, subdivision (b)," a unanimity instruction was required with respect to this count. (Ibid.)
The reasoning in Sanchez applies. Defendant neglected to provide necessary veterinary treatment to her mare on a continuing basis regardless of where the mare was located. Accordingly, there was no need for a unanimity instruction.
D. The Trial Court Did Not Impose an Unauthorized Sentence.
Defendant contends the order that she pay three separate costs as conditions of probation constitutes an unauthorized sentence. We reject her contention.
1. Further Background Information.
At the sentencing hearing, the trial court represented that it was going to grant defendant three years of formal probation "consistent with the recommendation" in the Probation Officer's Report (the Report). The trial court asked the parties if they would waive reading of all of the terms and conditions of probation and rely upon those listed in the Report. Defense counsel agreed, representing that he had gone over every term and condition with defendant. The terms and conditions of probation, and the costs defendant was ordered to pay that are not included in the probation conditions, are listed in the Report.
2. Analysis.
Defendant first challenges the order that she pay the cost of probation supervision. According to the June 24, 2016, minute order, such cost is listed; however, it is not identified as a condition of probation, nor is it included in the itemized list of probation conditions in the Report. Rather, the probation supervision cost is listed beneath the numbered conditions of probation in the Report. Since the trial court stated it was granting probation "consistent with the recommendation," the oral pronouncement of judgment controls over any discrepancy with the minutes. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Therefore, the cost of probation supervision is part of the judgment, not a condition of probation.
Next, defendant challenges probation condition Nos. 17 and 19 that she pay for the cost of her counseling (§ 597, subd. (h) ["[I]f a defendant is granted probation for a conviction under this section, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders"]) and the cost of impounding the mare (§ 597, subd. (g)(1) ["A person convicted of a violation of this section . . . shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition."]). Because these costs are directly related to defendant's animal cruelty conviction and are required by statute, they may be imposed as a condition of probation. (§ 1202.4, subd. (m) ["In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation."].)
E. The Residency Condition.
Defendant contends the residence approval condition of her probation should be stricken because it is unconstitutionally overbroad and violates her right to travel and freedom of association. The People respond that defendant forfeited this issue on appeal by failing to object in the court below and, in the alternative, argue that the condition is reasonable. We conclude the condition should be modified.
1. Further Background Information.
Defense counsel stated that he had gone through all of the probation conditions with defendant. Probation condition No. 8 provides: "Inform the probation officer of your place of residence and reside at a residence approved by the probation officer. Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer."
2. Analysis.
Where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228, 235.) As the court in Sheena K. explained, the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on "facial constitutional defects" that "[do] not require scrutiny of individual facts and circumstances." (Sheena K., at pp. 885-886.) However, the forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (Id. at pp. 885, 888.)
Here, contrary to the People's claim, we find defendant's claim of error cognizable on appeal, as it presents a "pure question[] of law" turning on undisputed facts. (People v. Welch, supra, 5 Cal.4th at p. 235.) Defendant's challenged probation condition can easily be remedied on appeal by modification. (See, e.g., Sheena K., supra, 40 Cal.4th at pp. 888, 892.) Therefore, her challenge to probation condition No. 8 has not been forfeited.
Probation conditions impinging on "constitutional rights 'must be narrowly drawn'" so that they are reasonably related to the state's interest in reformation and rehabilitation. (People v. Lopez (1998) 66 Cal.App.4th 615, 627.) In People v. Bauer (1989) 211 Cal.App.3d 937, the reviewing court struck a similar residence approval probation condition, stating: "The condition is all the more disturbing because it impinges on constitutional entitlements—the right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents—that is, the power to banish him. It has frequently been held that a sentencing court does not have this power. [Citations.]" (Id. at pp. 944-945.)
In view of the foregoing, we conclude the challenged condition should be modified. We are not persuaded that requiring defendant to obtain the probation officer's approval of her residence will benefit her rehabilitation. While the State may have an interest in forbidding or limiting defendant's contact with horses, that concern is addressed in condition No. 18: "Do not possess or have under your control any equines during the period of probation." The residence approval condition would have no such foreseeable effect on her rehabilitation from the charged offenses. Because we have the power to modify a probation condition on appeal, (see Sheena K., supra, 40 Cal.4th at pp. 888, 892) we order the condition modified to read as follows: "Keep the probation officer informed of your place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence."
III. DISPOSITION
The trial court is ordered to modify probation condition No. 8 to read: "Keep the probation officer informed of your place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence." In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. FIELDS
J.