IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
December 7, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RYAN PAUL JUNAID, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62086711)
The opinion of the court was delivered by: Hoch , J.
P. v. Junaid
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ryan Paul Junaid tortured and killed several guinea pigs and discarded their mutilated bodies in front of his neighbor's house. He captured the suffering of two of these animals on video. The video depicts defendant gaining pleasure by successively torturing two guinea pigs with a pair of needle nose pliers. Defendant pled no contest to two counts of animal cruelty (Pen. Code, § 597, subd. (a))*fn1 and admitted to personally using a deadly or dangerous weapon in the commission of the crimes (§ 12022, subd. (b)(1)). Twelve additional animal cruelty counts were dismissed and defendant was placed on five years formal probation.
Having secured a certificate of probable cause, defendant appeals from the trial court's denial of his motion to withdraw his plea. He claims the trial court abused its discretion by denying this motion because the torture and mutilation of the guinea pigs depicted in the video amounted to "a single course of conduct on a single occasion" supporting a single conviction for violating section 597, subdivision (a). We disagree and affirm defendant's convictions. We must, however, remand the matter to the trial court with directions to prepare an amended probation minute order specifying the statutory bases for all fines, fees and penalties imposed upon defendant.
In December 2008, a police surveillance team was set up outside a Roseville home to investigate reports that someone was leaving dead guinea pigs in front of the house. Unaware of their presence, defendant drove past the house and threw the mutilated corpse of a guinea pig out of his vehicle. The animal had been sliced open and dismembered. Defendant was immediately pulled over and consented to a search of the vehicle. Police found a cardboard box containing a live guinea pig with most of its fur missing and the amputated limbs of another guinea pig. The live guinea pig was taken to the animal hospital, where the veterinarian confirmed the animal had been burned and bruised.
Defendant admitted to buying about 20 guinea pigs from local pet stores during the previous six months and said that he had killed and mutilated most of them. According to defendant, he "killed them in a variety of ways," which "gave him a high like when he was doing Oxycontin."
A subsequent search of defendant's home uncovered a video capturing two incidents in which defendant used a pair of needle nose pliers to torture, mutilate and kill two guinea pigs. The video is 30 minutes in length. Defendant tortured the first guinea pig for about 24 minutes. During this period of time, he burned the guinea pig with a cigarette, sodomized it with the pliers, used the pliers to break two of the animal's legs, stabbed the guinea pig in the left eye, broke off the animal's teeth one at a time, and disemboweled the animal through its distended anus. Defendant finally ended the animal's life by crushing its jaw with the pliers, punctuating this portion of the video by stabbing the guinea pig in the chest and saying: "That's what you get."*fn2
After committing these acts of cruelty against the first guinea pig, defendant began anew with a fresh guinea pig. The video cuts off about six minutes into this second round of mutilation.
Based on the conduct depicted in the video, defendant pled no contest to two counts of animal cruelty and admitted to personally using a deadly or dangerous weapon in the commission of the crimes. Twelve additional animal cruelty counts were dismissed and defendant was placed on five years formal probation. He now appeals from the trial court's denial of his motion to withdraw his plea.
Denial of the Motion to Withdraw the Plea
Defendant contends the trial court abused its discretion by denying his motion to withdraw his plea because the torture and mutilation of the guinea pigs depicted in the video amounted to "a single course of conduct on a single occasion," supporting a single conviction for violating section 597, subdivision (a). We disagree.
Section 1018 authorizes a trial court, for "good cause shown," to allow a "plea of guilty to be withdrawn and a plea of not guilty substituted." As our Supreme Court explained in People v. Cruz (1974) 12 Cal.3d 562: "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty [or no contest] plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]" (Id. at p. 566; see also People v. Johnson (2009) 47 Cal.4th 668, 679.) "'Clear and convincing' evidence requires a finding of high probability. This standard [requires] . . . that the evidence be '"so clear as to leave no substantial doubt"; "sufficiently strong to command the unhesitating assent of every reasonable mind."' [Citation.]" (In re Angelia P. (1981) 28 Cal.3d 908, 919-920; In re Michael G. (1998) 63 Cal.App.4th 700, 709-710, fn. 6.) Moreover, a plea "resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." (People v. Hunt (1985) 174 Cal.App.3d 95, 103; People v. Urfer (1979) 94 Cal.App.3d 887, 893.)
"A decision to deny a motion to withdraw a guilty [or no contest] plea '"rests in the sound discretion of the trial court"' and is final unless the defendant can show a clear abuse of that discretion. [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Rivera (1987) 196 Cal.App.3d 924, 926-927.) The trial court's exercise of discretion can be reversed only if that court's "'determination is arbitrary or capricious or "'exceeds the bounds of reason, all of the circumstances being considered.'"' [Citation.]" (People v. Welch (1993) 5 Cal.4th 228, 234.)
In this case, defendant moved to withdraw his no contest pleas arguing that his attorney rendered ineffective assistance by failing to challenge whether the events depicted in the video could support two counts of animal cruelty under section 597, subdivision (a), and that his pleas were based on a serious misunderstanding of the law. The trial court rejected these arguments, explaining that the video undisputedly depicted "the mutilation of one animal, then [defendant] went to the mutilation of another animal. And to [the court,] that is a separate act," amounting to separate violations of section 597, subdivision (a). We agree with the trial court's assessment.
Section 597, subdivision (a), provides: "Except as provided in subdivision (c) of this section or Section 599c,[*fn3 ] every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense punishable by imprisonment in the state prison, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment, or, alternatively, by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment."
Subdivision (c) provides: "Every person who maliciously and intentionally maims, mutilates, or tortures any mammal, bird, reptile, amphibian, or fish as described in subdivision (d), is guilty of an offense punishable by imprisonment in the state prison, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment, or, alternatively, by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both the fine and imprisonment." (§ 597, subd. (c).) Subdivision (d) refers to various sections of the Fish and Game Code describing the endangered, threatened, and protected species covered by subdivision (c). (§ 597, subd. (d).) Subdivision (e) provides in relevant part: "For purposes of subdivision (c), each act of malicious and intentional maiming, mutilating, or torturing a separate specimen of a creature described in subdivision (d) is a separate offense." (§ 597, subd. (e).)
Relying on our decision in People v. Sanchez (2001) 94 Cal.App.4th 622 (Sanchez), defendant asserts that because subdivision (e) expressly makes each act of torture, mutilation, or maiming against an endangered, threatened, or protected species a separate offense for each individual animal, the Legislature must have intended subdivision (a) to punish a continuing course of conduct. And because, he argues, the video depicted "a single course of conduct on a single occasion," he could be convicted of only a single violation of section 597, subdivision (a). We are not persuaded.
In Sanchez, supra, 94 Cal.App.4th 622, 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).*fn4 (Id. at p. 625.) With respect to five counts, based on evidence that the defendant failed to provide adequate food and water for his animals, we held that the trial court was not required to provide such an instruction. (Id. at pp. 634-635.) We 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.)
Here, defendant was convicted of two counts of violating section 597, subdivision (a). We have found no case law discussing whether this subdivision describes a continuous course of conduct offense. Based on the language of the statute, we conclude that subdivision (a) may be committed either by a continuous course of conduct or by a single act of cruelty. "The courts have looked to the statutory language to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct and have concluded that when the language of the statute focuses on the goal or effect of the offense, the offense is a continuing offense. [Citations.] Other courts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, and aimed at a single objective. [Citation.]" (Sanchez, supra, 94 Cal.App.4th at p. 632.) Subdivision (a) prohibits the malicious and intentional maiming, mutilating, torturing, wounding, or killing of an animal. When this crime is committed by torturing an animal, as here, it involves the cumulative effect of repetitive acts of abuse. (See People v. Jennings (2010) 50 Cal.4th 616, 680 [torture may be committed under the course of conduct exception to the election/unanimity requirement]; see also People v. Hamlin (2009) 170 Cal.App.4th 1412, 1429.) However, an animal may be maimed, mutilated, wounded, or killed by a single act of cruelty, such as by shooting the animal to death or by using a hatchet to remove a limb.
Defendant's torture and mutilation of the first guinea pig lasted about 24 minutes and resulted in the animal's death. This continuous course of conduct amounted to one violation of section 597, subdivision (a). But that course of conduct ended when the animal died. At that point, defendant had an opportunity to reflect on his behavior and chose to begin his torture and mutilation anew with a fresh guinea pig. Defendant was properly convicted of two counts of animal cruelty and the trial court did not abuse its discretion by denying his motion to withdraw his plea.
Fines, Fees and Penalties
Defendant asserts that the matter must be remanded because the probation minute order issued by the trial court fails to specify the statutory bases for all fines, fees and penalties. We agree.
In People v. High (2004) 119 Cal.App.4th 1192, this court required the trial court at sentencing to provide a "detailed recitation of all the fees, fines and penalties on the record," including their statutory bases. (Id. at p. 1200.) Recognizing that such a requirement "may be tedious," we explained: "California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment." (Ibid.) This requirement also applies where the defendant is granted probation and, rather than an abstract of judgment, the trial court generates a probation minute order requiring confinement in a city or county jail as a condition of probation. (People v. Eddards (2008) 162 Cal.App.4th 712, 717-718.)
Here, the trial court did not recite any of the fines, fees and penalties imposed upon defendant at the sentencing hearing, instead simply stating: "I am going to adopt the recommendations of probation in terms of the other respects." And the probation minute order prepared by the trial court fails to provide the statutory bases for a number of fines, fees and penalties, including a $100 fine, a $100 penalty assessment, a $20 emergency medical fine, a $5 special penalty, a $22.50 courthouse surcharge, a $22.50 criminal justice fine, a $200 restitution fine, $350 for a pre-sentence report, $25 for a substance abuse test, $1,200 for a probation supervision fee, and $25 for an administrative screening fee. The probation report lists the statutory bases for some, but not all, of these assessments.
We shall remand the matter to the trial court for the limited purpose of preparing an amended probation minute order specifying the statutory bases for all fines, fees and penalties imposed upon defendant.
Defendant's convictions are affirmed. The matter is remanded to the trial court, and the trial court is ordered to prepare an amended probation minute order specifying the statutory bases for all fines, fees and penalties imposed upon defendant.
We concur: BLEASE , Acting P. J. ROBIE , J.