Trial Court: Sonoma County Superior Court Trial Judge: Hon. Kenneth J. Gnoss Super. Ct. No. SCR611939)
The opinion of the court was delivered by: Reardon, P. J.
CERTIFIED FOR PUBLICATION
In this case, we are called upon to determine whether substantial evidence supports the conviction of defendant Armando Gonzales Flores regarding the attack of an elderly man by a pit bull owned by defendant. 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 Penal Code*fn1 section 399. On appeal, defendant maintains he used ordinary care and that the victim's injuries were not sufficiently severe so as to constitute serious bodily injury. We affirm.
On December 12, 2011, nearly 90-year-old William Siemsen, was living at 2827 Marlow Road in Santa Rosa. Having just finished lunch, he was sitting in a chair in the front yard of his house when a dog came from the house next store, got hold of his 9-year-old black Labrador, Luna, shook her and dropped her. The dog then bit Siemsen on his left leg, below the knee.
Santa Rosa Police Officer Stephen Bussell was driving home in his personal vehicle when he saw defendant's pit bull, Blue, chasing Luna in front of Siemsen's residence. Officer Bussell saw the dogs fight, he saw Luna break free of Blue, and then he saw Blue attack Luna again as Luna got near Siemsen, who was sitting in a chair near his garage. Siemsen yelled at the dogs as they fought. The dogs were up against Siemsen and it "almost looked like he was getting pushed over in his chair." He hit both dogs with his cane before Luna broke free of Blue. Officer Bussell then saw Blue bite Siemsen once, possibly twice. Officer Bussell described Siemsen's wound as "maybe half an inch wide by two to three inches in length . . . it was severely deep." Officer Bussell instructed defendant to secure Blue in a vehicle parked at defendant's neighboring residence. Defendant grabbed Blue by the collar and put him in the nearby car. According to Officer Bussell, defendant appeared to be under the influence of alcohol.
Sonoma County Deputy Sheriff Adrian Mancilla responded to the incident and was directed to assist Siemsen in getting to the hospital. Deputy Mancilla took photos of Siemsen's injury before and after medical treatment and prepared a report. He observed one small puncture wound and one large puncture wound to Siemsen's left leg. There appeared to be more, however. According to Mancilla, there was so much blood on Siemsen's left lower leg that it was hard to see the puncture wounds.
Siemsen was taken to the emergency room and treated by Mark LaGrave, M.D. Dr. LaGrave described the dog bite as "a dramatic injury," a deep laceration that "wasn't something that superficial." Dr. LaGrave explained that he chose to loosely close the wound with four sutures due to drainage concerns and the potential for infection. In assessing the severity of the wound, Dr. LaGrave expressed concerns regarding Siemsen's advanced age and diabetic status. As such, he believed the injury required "close follow-up and excellent wound care." Dr. LaGrave opined that it would take months before Siemsen would have full use of his leg again.
After the bite, Siemsen's leg hurt for hours. His leg was bandaged for a week, and he had a neighbor take him back to the hospital every three days to get the bandages changed. Ultimately, the wound healed and left no scar. Siemsen explained that he was "half crippled" before the attack and that the injury "[j]ust slowed everything down." Following the injury, someone brought Siemsen his dinner in the evenings.
Sonoma County Deputy Sheriff Michelle Buchignani was dispatched to 2827 Marlow Road. At the scene, defendant seemed "very, very nervous." After being advised of his Miranda rights, defendant told Officer Buchignani that Siemsen would not have been bitten if he had not tried to hit Blue. According to Deputy Buchignani, at the scene, defendant "was minimizing the victim's injuries." Deputy Buchignani testified that defendant had the slight odor of alcohol about him, but was not acting intoxicated.
Defendant told Deputy Buchignani that the county was aware of Blue's history and as a result Blue had been microchipped and neutered. According to Deputy Buchignani, defendant "blam[ed]" the county for Blue's violence. Defendant told her that "the dog had  been aggressive with other dogs in the past, had attacked other dogs in the past." Deputy Buchignani described Blue as a "[r]eal powerful" animal, with a big head and large, muscular chest. As Blue was being removed from the vehicle by animal control staff, he "resisted quite a bit," biting at the staff and pulling back from them. In contrast, Deputy Buchignani described Siemsen's dog, Luna, as an older dog, approximately 10 years old with a graying muzzle, that appeared "very submissive" and exhibiting no aggressive behavior.
Sonoma County Animal Control Officer Jeff Clemens responded to the scene. Officer Clemens described Blue's behavior as "[v]ery concerning," as "[t]he animal was an extremely large animal. It displayed certain body language that was very, very obvious that it was a dangerous, dangerous animal." As he approached the vehicle where Blue had been contained, he heard a "very deep, low . . . growl." Officer Clemens observed that Blue had a "very direct, challenging eye stare." Officer Clemens, with the assistance of two deputies, was ultimately able to remove Blue from the vehicle using a "rigid leash or catch pole." Once impounded at Animal Control, Officer Clemens remembered seeing Blue in a ...