Opinion
B190275
4-24-2007
William S. Mount, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Holding his snarling German shepherd by the leash, appellant Bahman Khodayari chased an animal control officer off the property of his auto repair shop. He then refused to cooperate with police officers who arrived to investigate what had happened. Count 1 of the information originally charged him with a felony, assault with a deadly weapon, a dog, but the charge was reduced to a misdemeanor before the trial. He was convicted on count 1 and on two other misdemeanor counts; assault on an animal control officer and obstruction of a police officer. The trial court suspended imposition of sentence and placed him on summary probation for 36 months, with 180 days in county jail.
Appellant contends: (1) The evidence failed to establish that he committed an assault with a deadly weapon. (2) His trial counsel should have moved to suppress the observations of the officers who went onto his property to arrest him. (3) The trial court should not have refused to allow members of his family to speak at the sentencing hearing.
We find no error, and affirm.
FACTS
1. Prosecution Evidence
In January 2005, appellant received a notice of violation from the Department of Animal Services. He was thereby informed that he needed to obtain a special license and proof of rabies vaccination for any dogs that he kept on his commercial premises during business hours.
On April 26, 2005, a uniformed animal control officer named Michael Blake went to appellants auto repair shop to investigate a complaint that a dog was tied up without shelter. Before going there, he checked records and learned that appellant had not complied with the January notice from his department.
Blake arrived at the shop about 11:00 a.m. It was a weekday. The large bay doors of the shop were open. Inside of a chain-link enclosure on the property, an 80-pound German shepherd was attached to the fence by a 10-foot chain. The dog barked at Blake. It was in the sun, on concrete, without food, water, or shelter. There were 20 to 30 piles of feces in the enclosure, with no clean area in which the dog could sit down. In Blakes opinion, the dogs situation violated laws against cruelty to animals.
Blake entered the shop through the open bay door. He saw appellant, identified himself, and explained why he was there. He asked appellant to identify himself. Appellant "seemed agitated and aggressive." He admitted he owned the dog, but would not give his name. He said to Blake, "So give me your notice and get the f___ out." Blake told appellant he needed to discuss the problem first. Appellant walked away from Blake and went through a door that led to the dogs enclosure. Blake followed as far as the doorway.
Appellant walked up to the dog. He said something to it that Blake did not hear. The dog looked at Blake, barked, and jumped around. Appellant unhooked the dogs chain from the fence and slightly pulled on the chain. Then he "came charging right at [Blake] with the dog." He kept pace with the dog, holding onto the chain and not pulling back. The dog bared its teeth and snarled as it looked at Blake. Its tail was erect and its ears were laid back. Blake had previously seen dogs attack when they showed those signs of aggression. He feared for his safety.
When the dogs snout was about eight feet from him, Blake began to run. He ran backwards while maintaining eye contact with the dog, to avoid further exciting it. He backed into the shop and continued running to his car. Appellant and the dog stopped inside the shop. Once inside his car, Blake called the police.
While Blake was waiting for the police, appellant approached and asked if he was going to issue the notice. Blake told appellant that he now was going to issue a citation, which is a notice to appear before a judge. He asked appellant his name and his identification. Appellant said he had neither a name nor identification. Blake told appellant that the police were coming. Appellant moved a car into the garage and closed the bay doors.
Police Officers Nicole Nunez and Terence Tamura arrived at the scene in uniform. Appellant was now standing behind the locked gate of the chain-link fence that surrounded the property. The dog was barking and running around inside of the fence. Tamura told appellant that the police were there to investigate his use of the dog to assault an animal control officer. He repeatedly asked appellant to come out from behind the fence. Appellant refused, and directed profanities at the officer. At some point, appellant went into the office inside the building, called the police station, and spoke to the watch commander.
Police Sergeant Chris Bonilla, a supervisor, arrived at the location while appellant was in the office. Bonilla yelled towards the office, identifying himself and asking appellant to come outside for questioning. Appellant eventually came out of the building, talking on a cell phone. He told Bonilla that he was willing to sign the ticket. Bonilla said the circumstances had changed, as the officers were investigating an assault with a deadly weapon, and appellants lack of cooperation was an additional offense. Bonilla again asked appellant to step outside of the fenced area. Appellant refused. He offered the cell phone to Bonilla and said, "Here talk to my attorney." Bonilla declined. Appellant defiantly refused Bonillas request. The dog barked and paced aggressively on appellants side of the fence. Finally, the officers retrieved bolt cutters from the police station, cut the lock on the gate, and entered the property. They arrested appellant, who did not resist.
The police officers were at the location for about an hour before appellant was arrested. Blake, the animal control officer, remained at the scene during that time. He saw the dog bark and snarl at the police officers through the fence. When the police officers entered the property, Blake and another animal control officer tended to the dog. It charged at them aggressively, and they pinned it down behind a car and seized it, using a long pole with a loop at one end. At the trial, Blake also indicated that an animal is naturally protective of its territory, without any need for special training.
2. Defense Testimony
After the incident, Richard Karl, a professional dog trainer, spent 30 to 45 minutes with the dog at a kennel to assess its demeanor and personality. The dog was fully grown. It barked at him, but in his opinion its behavior was "puppyish," social, and nonaggressive. It did not appear to be a trained guard dog or to have had any obedience training. He did not think the dog would attack a person unless it was prodded to do so.
On cross-examination, Karl admitted that a dog does not need formal training to protect its owner or property, or to bite. Dogs are more likely to attack in a familiar environment, and may take cues from their owners. Tying up a dog could make it more aggressive. Even a nonaggressive dog could be aggressive under certain circumstances. A dog that was barking, snarling, and baring its teeth, with an erect tail, was showing aggressive behavior that indicated an attack was possible. Moreover, German shepherds are powerful dogs that can cause great bodily injury or death during an attack. Karl himself would back away quickly if an 80-pound German shepherd charged at him from eight feet away, displaying aggressive traits and controlled by an angry owner.
Appellant then testified. He gave a different version of the incident, and indicated that Blake and the police officers had lied.
According to appellant, the dog, "Max," was a one-year-old neutered male that he had adopted from an animal shelter a few months earlier. It had no formal training. He kept it chained up briefly, part of the time that it was at his business, but it had easy access to food, water, and shelter when it was not chained up. It was chained up when Blake arrived because he wanted to keep it away from some tools that he was organizing. There were only five or six piles of dog feces in the enclosure, and the piles were not near the dog. Appellant thought that Blake was "very unprofessional" and "ridiculous" for accusing him of animal cruelty, without asking more questions.
Appellant did not think that it was too hot for the dog where he had tied it. However, to satisfy Blake, he told the dog to be quiet and released it from the fence, so he could move it into the shade. Appellant weighed 135 or 140 pounds. The dog had "very strong pulling power." When he released it, it pulled him about 10 feet in Blakes direction. He and the dog were never closer than 20 or 30 feet to Blake, and did not charge at Blake. He put the dog into a shady area at the back of the property and came out to the front again. He saw that Blake was still there, so he asked him for the ticket. Blake did not respond, and never said that he had called the police.
Appellant closed up the shop, as business was slow and he `want[ed] to cool off the situation." He unchained the dog and let it run loose within the fenced property. When the police officers came, he told them through the fence that the business was closed, and they could not enter the property without a search warrant. The officers never told him why they were there. They asked him to come outside and sign a paper. They refused to pass the paper to him through the fence. Eventually, they cut the lock and arrested him. The dog sat down for the animal control officers, who caught it easily.
DISCUSSION
1. Sufficiency of the Evidence
On Count 1, appellant was charged with and convicted of a misdemeanor violation of Penal Code section 245, subdivision (a)(1), based on committing an assault with a deadly weapon, "to wit, a DOG." He maintains that the evidence was insufficient because it failed to establish that his dog Max was a deadly weapon, and because there was insufficient evidence that he actually knew that his acts would probably and directly result in the application of physical force.
All further code references are to the Penal Code unless otherwise stated.
Appellants arguments focus on the defense version of the facts, which the jury rejected. Under established rules of appellate review, we review the evidence in the light most favorable to the prosecution, to determine whether there was substantial evidence from which a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; Jackson v. Virginia (1979) 443 U.S. 307, 319.) Applying that standard of review, we find sufficient evidence to support appellants conviction for assault with a deadly weapon.
We draw guidance from two previous cases, People v. Nealis (1991) 232 Cal.App.3d Supp. 1 (Nealis) and People v. Henderson (1999) 76 Cal.App.4th 453 (Henderson ), which upheld findings that dogs were deadly weapons. Nealis did so in the context of a section 245 violation. Henderson involved a violation of section 417.8, drawing a deadly weapon to resist arrest.
The dog in Nealis, supra, 232 Cal.App.3d Supp. 1 was a trained Doberman pinscher that responded to the defendants verbal commands to attack the victims in a parking lot. Appellant relies on a sentence in Nealis stating that the "collective holding" of cases from other jurisdictions is "that a dog may be a deadly weapon if the person uses the dog to attack or threaten a human and the dog is trained to respond to the person and is capable of inflicting serious injury." (Nealis, supra, 232 Cal.App.3d at p. Supp. 4, italics added.)
Notwithstanding the language quoted above, the express holding of Nealis is that "depending upon the circumstances of each case, a dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a `deadly weapon or instrument within the meaning of section 245." (Nealis, supra, 232 Cal.App.3d at p. Supp. 6.) As indicated by the emphasized language in that sentence, Nealis did not impose a requirement of special training, even though the dog in that case apparently had such training.
Indeed, in Henderson, supra, 76 Cal.App.4th at p. 470, the court rejected the argument that, under Nealis, special training must be shown before a dog can be a deadly weapon. Henderson identified "the ultimate question" to be, "whether the dog would attack, regardless of any training it may or may not have received." It found sufficient evidence that the defendants pit bulls were deadly weapons, where he deliberately agitated them to attack police officers at his home, and a dog trainer testified about the dangerous characteristics of that breed, even for pit bulls that were not trained for fighting.
Appellant stresses his own testimony and the direct testimony of his expert, Karl, indicating that his German shepherd was immature, playful, and not trained to attack. However, Karl himself testified, on cross-examination, that dogs do not need formal training to protect their owner or property, and German shepherds are capable of causing great bodily injury or death during an attack. That testimony was corroborated by Blakes testimony that a dog will protect its area, even without special training. Blakes version of the incident, which the jury believed, was that appellant said something to the dog that excited it, released it from the fence, and charged with it at Blake, as the dog looked at Blake and exhibited signs of aggression. From that testimony, the jury could reasonably find that the dog was responding to a command from appellant to attack Blake. Like the court in Henderson, supra, 76 Cal.App.4th at page 470, we conclude that the dog was used as a deadly weapon at the time of the incident.
Similarly, we find sufficient evidence that appellant had the requisite mental state for an assault.
"[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.) "In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (Id. at p. 788.)
Through the combination of (1) Blakes testimony about the dogs aggressive traits when appellant charged at him with the dog, and (2) Karls testimony about the potential dangerousness of that breed of dog, there was sufficient evidence to make a reasonable person realize that a battery would result from using the dog to chase Blake off of the property.
In his reply brief, appellant raises a new but related issue, which is that the trial court erred in giving this special instruction: "A dog can be a deadly weapon. There is no requirement that a dog undergo special training before it can be deemed a deadly weapon." Based upon Henderson, supra, 76 Cal.App.4th 453, the instruction was a correct statement of law.
2. Ineffective Assistance of Counsel
Appellant contends that his trial counsel rendered constitutionally ineffective assistance by not moving to suppress the observations and impressions of the police officers after they cut the lock and entered onto his business premises. He maintains that the warrantless entry was illegal because it was supported neither by consent nor by exigent circumstances.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a `reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, and In re Wilson (1992) 3 Cal.4th 945, 950.)
The parties dispute whether the police acted legally when they cut the lock and went through the gate onto the property, without entering the building that contained the office. We do not need to enter that battle, as appellant cannot show that the result would have been different, if a successful suppression motion had been made.
Appellant committed the offenses before the police entered his property. The only additional incriminating fact after that entry was that the dog continued to be aggressive, so that animal control officers had to use a pole to seize it. That relatively small piece of evidence was cumulative to the overwhelming earlier evidence from Blake and the officers, concerning the dogs aggressive tendencies when it charged at Blake and during the hour that the police officers were on the other side of the fence. It is therefore not reasonably probable that the result in this proceeding would have been different, but for trial counsels failure to object to the officers entry onto the property. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
3. The Sentencing Issue
After the jury returned its verdict, the trial court said that it intended to give appellant a year in county jail. At defense counsels request, the sentencing hearing was continued. At the continued hearing, the court listened to arguments from appellant and his counsel, but refused to allow members of appellants family to speak. It then suspended imposition of sentence and placed appellant on three years of summary probation, with 180 days in county jail.
Appellant maintains that the preclusion of comments from his family members violated his constitutional and statutory rights to allocution.
The common law right of allocution is codified in California in section 1200, which states in pertinent part: "When the defendant appears for judgment he . . . must be asked whether he has any legal cause to show why judgment should not be pronounced against him." (Italics added.) Under In re Shannon B. (1994) 22 Cal.App.4th 1235, 1246, section 1200 means that a defendant has "the right to make a personal statement and present information in mitigation of punishment." However, as discussed in In re Shannon B., supra, at page 1242, the "constitutional status of the right to allocution is unclear." In fact, our Supreme Court is currently considering whether there is a denial of due process if the trial court refuses an affirmative request by the defendant to speak at his sentencing hearing. (People v. Evans (2006) 135 Cal.App.4th 1178, review granted April 26, 2006, S141357.)
While there is uncertainty over the scope and constitutional nature of the right of allocution, there is no authority for extending that right, beyond a personal statement from the defendant, to his family members. The right to allocution is generally characterized as a "personal right." (See Green v. United States (1961) 365 U.S. 301, 305.) The trial court permitted appellant, personally, to speak. It even asked him, when he had finished speaking, if he had "[a]nything further" to say, to which he responded, "No, Your Honor." We conclude that there was no denial of the right of allocution under the facts of this case.
Finally, assuming any error in not permitting statements by appellants family members, there was no prejudice. (People v. Ornelas (2005) 134 Cal.App.4th 485, 489.) The probation report recommended the maximum amount of local custody, partly because appellant had previously been on probation for carrying a concealed weapon. The trial court originally intended a year in custody, but reduced that period to 180 days, after it heard from appellant and his counsel regarding mitigating circumstances. The court explained that its punishment was necessary due to appellants "outrageous" attitude towards the police officers. We therefore conclude that error, if any, in precluding testimony by the family members, was nonprejudicial, as it would not have changed the trial courts decision.
The trial court stated: "The court feels that Mr. Khodayaris activities in delaying approximately eight police officers for well over an hour; for his attitude and demeanor in dealing with those officers; for his testimony on the stand, which he called all of them liars, when the court agrees fully with the jury that they were all very truthful and very forthright in their testimony, the court feels thats probably the most outrageous. [¶] Mr. Khodayari engaged in tying up eight police officers in the city of Los Angeles for well over an hour for what was a simple citation is just unbelievably selfish, egregious, and needs to be punished."
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J.
BOLAND, J.