Jim Porter: Mischievous dog case ends in criminal charges
May 23, 2013
We are all familiar with the phrase "one free dog bite," which means that until your dog has shown dangerous propensities and has bitten someone, you as owner are not responsible for the dog's bites.
That's no longer the law, but it's a cool enough phrase that I thought I should throw it in this column.
A Dog Named Blue
I am a Lab owner, so this Pitbull v. Lab case caught my interest. Ninety-year old William Siemsen was sitting in a chair in his front yard in Santa Rosa when a strong young Pitbull named Blue got hold of his nine-year-old black Lab, Luna, shook her and dropped her. Luna broke free, then Blue went on the attack and Siemsen yelled at the dogs as they fought.
The dogs brushed up against Siemsen who hit them with his cane, at which point Blue bit Siemsen inflicting a wound "maybe half an inch wide by two to three inches in length … severely deep." That according to an off-duty policeman who was driving by and went to Siemsen's aid.
The owner of Blue, defendant Armando Gonzales Flores, lived next door. After being advised of his Miranda rights, he told the officers that Blue would not have bitten Siemsen if he had not hit Blue.
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He minimized Siemsen's injuries in his conversation with the officers and denied that he had been drinking despite an odor of alcohol about him.
The defendant blamed Santa Rosa County for Blue's violence because after several aggressive dog incidents and attacks on other dogs, Blue had been micro-chipped and neutered.
Apparently, they should have cut off his head because neutering didn't do the trick. Blue is one mean fighting machine — with a "dominant stare" and a "deep, low growl while barring his teeth."
Gonzales Florez was charged with violation of Penal Code Section 399, which essentially makes it a crime to own a "mischievous animal," knowing its propensities, and allow it to go at large and cause serious bodily injury to a human being.
A mischievous animal is one that may be dangerous to others if allowed to run free or is kept in a negligent manner. Mischievous propensities means propensities that may naturally pose a risk of harm or injury to others.
Blue had a criminal record. Under the Santa Rosa City Code, he had been designated "a potentially dangerous animal, so while on the owner's premises, shall, at all times, be kept indoors, or in a secure enclosure."
Blue had to wear a special dog collar indicating he was potentially dangerous. He was supposed to be muzzled whenever off the owner's property, but wasn't in our incident.
Blue had quite the rap sheet, including going after a 25-pound Terrier-Beagle and later attacking a neighbor while "literally dragging" Gonzales Flores who was unable to hold his dog back.
Then there was the neighbor across the street who Blue tried to attack through her front door. Gonzales Flores' friends testified that Blue was a perfect little angel. They had never seen Gonzales Flores drink alcohol. Liar liar pants on fire.
The Court of Appeal listened to Gonzales Flores' arguments that Blue had not bitten anyone before, but easily concluded: "There was overwhelming evidence that Blue's aggressiveness, combined with his massive strength and power, made him uncontrollable and a danger to the public."
The Court found that Siemsen used his cane defensively trying to protect himself and his older dog Luna. Gonzales Flores "failed to act as a reasonably careful person would in the same situation."
The Court of Appeal also found that Siemsen had suffered "serious bodily injury" which had been contested by Gonzales Flores. The jury's conviction of guilty for not controlling a mischievous animal was upheld. Defendant placed on probation for three years. No report on status of Blue.
Law Review Flashback
This case reminds me of the 2001 mauling and death of a young woman in San Francisco by two monstrous English Mastiff and Canary Island cattle dogs whose owner was unable to keep under control.
The owner's response was, "I have eighty-year-old ladies want to come up and pet them. The dogs have always been really people-friendly." With evidence of prior incidents, she was convicted of involuntary manslaughter.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at email@example.com or at the firm's website http://www.portersimon.com.
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