APPEAL from the Superior Court of Riverside County. Christine V. Pate, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.No. SWF027012)
The opinion of the court was delivered by: Richli J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Defendant Ricky Donell Jones stabbed a dog to death. It belonged to his girlfriend's 10-year-old son; defendant inferably intended to punish the boy for letting the dog out.
A jury found defendant guilty of cruelty to an animal (Pen. Code, § 597, subd. (a)) and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)). He admitted four "strike" priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). On defendant's motion, the trial court struck three of defendant's four strikes. It then sentenced him to a total of seven years in prison.
In this appeal, defendant contends:
1. The trial court erred by instructing the jury that the intent to vex, annoy, or injure another person could constitute malice for purposes of animal cruelty.
2. The trial court erred by instructing the jury that it could consider prior instances of child abuse in determining whether defendant was guilty of child endangerment.
3. Defendant's trial counsel's performance was so deficient as to violate the Sixth Amendment.
We find no error affecting the conviction. On our own, however, we have identified one sentencing error. We will modify the judgment accordingly. Otherwise, we will affirm.
A. The Prosecution's Case.
Defendant was living with Sarah R. They had a baby girl together. Sarah's four sons also lived with them.
As of October 2008, Sarah's oldest son, C.R., was 10 years old. C. testified that he was afraid of defendant. He explained that, on one occasion, his mother told him he could sleep in, but defendant woke him up; because he had overslept and/or because he had not finished his chores, defendant hit him with a ruler until it broke, then continued to hit him with a belt. Sarah "ran down the stairs and said, 'Stop it. Stop it.'" Defendant just yelled at her and told her to go back upstairs.
The family had several dogs. C.'s chores included taking care of the dogs -- feeding them, walking them, and cleaning up after them. According to C., defendant was not "nice" to the dogs. He explained that when they scratched on the door and wanted to come inside, defendant would hit them.
One of the dogs was Jack, an Australian cattle dog about six months old. C. considered Jack to be his own pet. Jack slept in a kennel in the backyard. Defendant had strict rules about not allowing Jack in the house.
On October 6, 2008, in the morning, when C. went to clean up after the dogs, he let Jack out of his cage. Jack ran to the door of the garage. Defendant came outside and threw Jack on the ground. After disposing of the dogs' "poop," C. "went to see if [Jack] was all right . . . ." He heard Jack "screaming" in defendant and Sarah's bedroom. He also heard Sarah say, "Don't do it, don't do it," and defendant say, "Shut up."
C. was not allowed to go in defendant's bedroom, so he went to his own room. When Sarah came in to take him to school, she was crying. Once C. got to school, a friend saw him crying and asked him what was wrong. C. said that defendant had killed his dog. During the day, he also told this to several other friends.
Around 3:00 p.m., an anonymous caller reported "child abuse and animal cruelty allegations" to the police. When the police responded, they found C. and his three younger brothers home alone. The boys began to cry because they were worried about getting into trouble with defendant. One of them said he was afraid that defendant would kill him.
C. testified that he often babysat his brothers for two or three hours at a time. However, he had no way of contacting his mother or defendant, as "they didn't let [him] have their phone number." An officer managed to find Sarah's phone number. He called her and asked her and defendant to come home.
When the police interviewed defendant, he admitted killing Jack by "us[ing] a[n] object to puncture the dog's lungs . . . ." He said the dog was a "financial burden" because it would escape by digging under the fence, and the neighbors would complain. He had put the body in the trash bin. When asked why he had not taken the dog to the Humane Society, he said he did not know you could do that. He also said the dog was "too vicious" to take to animal control. Defendant denied abusing or physically disciplining the children.
Jack's body was found in the trash bin. He had been stabbed twice in the chest, while lying on his side. He had a collapsed lung; as a result, he had died slowly of suffocation. In addition, his right hip was dislocated or broken, and he had "extensive" bruises, especially around his neck and on his abdomen.
Kristen Stennett, a social worker, interviewed Sarah. Sarah told her that defendant "had stabbed the dog in front of her" while she was holding the baby and had "made her watch him kill the dog." She said defendant had killed the dog because "he was irritated that the dog was barking all the time . . . ."
When Stennett spoke to the children, they said that two weeks earlier, defendant "had killed their cat with a bat . . . ." According to Stennett, Sarah admitted that the cat was dead. She explained that the cat had bitten defendant, and defendant "was trying to get the cat out of the bedroom using a bat."
Sarah testified that the people she bought Jack from told her "they couldn't handle him anymore" and he "was too much for their [five-year-old] daughter to deal with." Jack was "aggressive" with Sarah's children. On one occasion, he "pinned . . . down" her six-year-old son. When her two-year-old pulled Jack's ears and tail, Jack "snapped at" him. Jack would "attack" and bite the family's other dogs. He would get out under the fence and "stalk" passersby.
The night before the stabbing, C. had "snuck [Jack] in his room." He was trying to sneak Jack back out again when Sarah saw them through the bedroom door, which was open. At first, Jack "didn't know which way to go," but then he "rushed in" to the bedroom. The seven-month-old baby was lying on the floor. Jack "went after" the baby, putting his head down, growling, and snapping at her. He was no more than a foot away when Sarah grabbed the baby, and defendant grabbed the dog. There was a kitchen knife in the bedroom that had been used to cut the wrapping away from some new furniture. Defendant took the knife, held Jack down on the bathroom floor, and stabbed him.*fn1
On cross-examination, Sarah admitted lying to the police by telling them that Jack had run away.
According to Sarah, when she talked to Stennett, she was "under severe duress" imposed by the police. She admitted telling Stennett that defendant would spank the children with a belt or a shoe. However, she denied saying that defendant killed the dog because it had been barking or that he made her watch. She admitted talking to a different social worker about the cat but denied talking to Stennett about it. She no longer had the cat, she admitted, but, she added, "[T]he cat didn't die."
MISINSTRUCTION ON THE MALICE ELEMENT OF ANIMAL CRUELTY
Defendant contends that the trial court misinstructed the jury regarding the malice element of animal cruelty.
A. Additional Factual and Procedural Background.
The jury was instructed that animal cruelty required that defendant have acted "maliciously." It then instructed: "The words 'malice' and 'maliciously' mean a wish to vex, annoy, or injure another person or animal, or an intent to do a wrongful act." (CALJIC No. 1.22.)
Defense counsel objected to this definition of malice, citing a case that is not named in the record, but that apparently was People v. Dunn (1974) 39 Cal.App.3d 418. The trial court overruled the objection.
In closing argument, the prosecutor argued that defendant killed Jack to punish C.: "The defendant's actions in taking Jack and throwing him to the ground and stabbing him were to punish C. . . . for letting the dog out of the kennel, a rule that was put in place by the defendant, and it made the defendant mad that his rules were not being followed, and he was going to make an example, and he used Jack."
The prosecutor also argued that defendant also intended to punish Sarah and her other children: "And why did he make Ms. R[.] watch? Probably to show that he was in control, to show the example because he knew that she let the dog in sometimes, and she gave C. a little more leeway and the other children a little more leeway than he thought was appropriate, and he was using that dog as punishment, punishment to C. and the whole family."
Defendant was charged with animal cruelty under Penal Code section 597, subdivision (a). This subdivision requires that the defendant act "maliciously and intentionally."
Penal Code section 7 defines "malice" in general as "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act . . . ." (Pen. Code, § 7, par. 4.)
Defendant relies on People v. Dunn, supra, 39 Cal.App.3d 418. There, the defendant was charged with animal cruelty under Penal Code section 597, subdivision (a). The trial court instructed that malice meant "an intent to do a wrongful act." (Dunn, at p. 420.)
At the time, Penal Code section 597 was written very differently. Penal Code section 597, subdivision (a) (hereafter subdivision (a)) applied exclusively to cruelty to an animal owned by another; it expressly required malice. Penal Code section 597, subdivision (b) (hereafter subdivision (b)) applied to cruelty to any animal, and it did not expressly require malice. (People v. Dunn, supra, 39 Cal.App.3d at p. 420; see Stats. 1972, ch. 779, § 1, p. 1394.) The defendant therefore ...