People v. Burnett (110 Cal. App. 4th 868, 2003)

Opinion

PREMO, J.

Incensed that the driver behind him tapped his car with her bumper, defendant Andrew Douglas Burnett, snatched her little white dog Leo out of her car and threw him onto a crowded roadway, where he was run over by a minivan and killed. Defendant was convicted of animal cruelty and received three years in state prison. On appeal, he challenges the sufficiency of the evidence, the instructions, and the competence of counsel.

FACTS

Shortly before 8:00 p.m. on February 11, 2000, Sara McBurnett was driving her 1997 Subaru Legacy northbound on Airport Boulevard to the San Jose Airport. Her 19-pound Bichon Frise Leo was asleep on the front seat. It was raining heavily and traffic was congested. Near the intersection with Airport Parkway, defendant, driving his black SUV with Virginia license plates, passed McBurnett very rapidly on the right shoulder, cut in front of her and into the lane to her left in front of another car. McBurnett needed to move over herself to avoid having to make a right turn, and when the driver behind defendant left room for her, she changed lanes behind defendant. The back end of McBumett’s car was still in the lane she was leaving, so she “inched forward to get as close [as possible] to the car in front of me, which was the black SUV with Virginia plates .... And I’m afraid I made a judgment of depth error and the bumper tapped very lightly.”

The driver’s side door of the SUV swung open, and she saw a man get out of the car and walk in a very aggressive manner back to her while yelling something. He was White, about “20 something” years old, with a goatee and a baseball cap turned 'around backwards. He was “[s]ort of stomping forward and shouting at the same time.” McBumett could not hear him, so she rolled down the window. Defendant was shouting, “What the hell do you think you’re doing?” McBumett was “bewildered and perplexed” and answered, “What are you talking about?”

By then, Leo, who had been McBumett’s “constant companion” for 10 years, woke up and got into her lap. McBumett explained, “[w]henever the window opens, he comes over to see if it’s, for instance, the bank teller with a biscuit or something of that sort.” Defendant reached into the car, grabbed Leo with both hands, pulled him out, turned his back to McBumett, took one step away from her car making her think he was “going to dog nap” Leo, and threw Leo “pretty hard” into the oncoming lanes of traffic.

McBumett got out of her car to mn after Leo, but she had not put the car in “park” and it rolled and tapped defendant’s bumper again. McBumett got back into the car, placed it in “park,” and then ran after Leo, dodging traffic. Leo was “terrified,” and “he was crouching with his tail tucked under” as McBumett had seen dogs do when they are terrified or injured. Witness John Mora saw Leo almost get hit three or four times, and McBumett almost get hit twice. Then a white minivan came through the intersection and hit Leo. McBumett picked up Leo, who she later realized bit her thumb severely, put him on the passenger seat of her car and put a jacket over him. She stated, “at that point [defendant] made a high speed, illegal right turn on a red light and fled.” McBumett heard the squeal of tires. She drove to the terminal where she was picking up her husband, a pilot, whose flight had been diverted to the San Jose Airport. Then they started to an emergency veterinarian, but Leo died about halfway there.

McBumett had dialed 911 while she was still stopped on the roadway and when she and her husband got to the vet’s office, someone called the police. McBumett was told that it would take two hours to get an officer to the vet’s office. They suggested that she go home and file a report at her local police department, which would send a courtesy report down to San Jose. The next day McBumett filed a report with the Ross Police Department.

McBumett denied that Leo snapped at defendant when he reached into the car, and denied that defendant reached into the car with one hand to point her in a direction to pull off the road. She denied that Leo had ever snapped or bitten anybody until he bit her when he was in pain after being hit.

Meanwhile, defendant went to the airport and picked up his cousin Stephanie Temple. She testified he did not say anything about the earlier incident although defendant’s and her cell phone records showed four calls to him from her phone between 8:16 and 8:27 and one call from him to her at 8:33 p.m.

About two weeks after the incident, McBumett told her story to the San Jose Mercury News. In the next two or three months, she appeared on Oprah, the Today show, Good Morning America, Inside Edition and a local radio talk show on KGO with Ronn Owens. Owens and KGO collected $120,000 in reward money to catch the person responsible for the crime. Later, a Web site was created about Leo and this incident.

The publicity and the existence of the reward caused residents of the area to keep their eyes open for a black SUV with Virginia plates. Two citizens testified at defendant’s trial that they spotted defendant’s black SUV. One, a private detective, followed it in mid-March 2000 from San Jose to Merced where the driver left it parked in the condominium complex where defendant’s mother lived and later drove back to defendant’s address in San Jose in a white Ford tmck. The white pickup was in San Jose and the black SUV in Merced for at least two weeks. Another citizen noticed the SUV with Virginia plates and saw that the driver had a goatee. She followed defendant for a short distance on Winchester. She thought he realized he was being followed because he went faster and faster and then suddenly made a U-turn in the middle of the road and sped off in the opposite direction. Defendant was contacted by the police but not arrested for the crime against Leo until he was in custody on another charge.

The manager of defendant’s apartment complex testified that defendant’s black SUV matched the description of the vehicle involved in the incident with Leo. She became aware of the incident at the time it happened in February 2000, and afterward she noticed that defendant parked away from his assigned parking space, and frequently parked the SUV with the back end into the bushes to hide the license plate. She also noticed that defendant’s appearance changed. “[H]e looked different every time I seemed to see him, ... [][] ... [|] Once in awhile [sic] when he would come in and pay rent, he would have a baseball cap on and glasses and facial hair, a beard. And another time, no hat, no glasses, maybe a moustache. He would just change his facial appearance. [][] ... [f] [His hair] would be clean-shaven, or it would get long, or he would wear a hat.”

Defendant was charged with a felony violation of Penal Code section 597, subdivision (b). That section punishes “every person who ... cruelly kills any animal, or causes or procures any animal to be so ... cruelly killed ....” The jury found defendant guilty as charged, and the court imposed the aggravated term of three years in state prison. This appeal ensued.

ISSUES ON APPEAL

Defendant contends (1) there is insufficient evidence to support a violation of section 597, subdivision (b); (2) the court erred by giving erroneous instructions on proximate cause and omitted others; (3) the court erroneously ruled a prior dog-killing admissible as other crimes evidence; and (4) defense counsel was ineffective for failing to request a mistrial when the dog-killing evidence was disclosed after the trial started and for failing to call defendant to testify after promising that he would in his opening statement.

SUFFICIENCY OF THE EVIDENCE

Defendant claims that since the instructions given to the jury on the charged offense limited the scope of that offense only to having “caused an animal to be cruelly killed,” it is his position that “the word ‘cruelly’ only modifies the word ‘killed,’ and it does not in any way modify the word ‘caused.’ [<[[] When, as in this case, the accused does not do the direct or actual act that inflicts the death of the animal, the law only proscribes having caused the animal to be ‘cruelly killed.’ ... Thus, if the direct and actual act of killing is not ‘cruel,’ there is no violation of subdivision (b) of section 597 ... even if the causal conduct of the accused leading up to the direct and actual act of killing is itself ‘cruel.’ [f] ... [I]n this case the direct and actual act of killing (i.e., the white minivan running over the dog without apparently slowing down and then driving off without stopping) was not cruel. It is a sad fact of life that many animals, including dogs, are at times run over by cars and killed. The fact that this does occur does not make such an encounter something that is ‘cruel.’ Thus, in this case, there can be no violation of subdivision (b) of section 597 ... even if defendant’s behavior proceeding [sic] the direct and actual act of killing in this matter was in and of itself ‘cruel.’ In short, the statutory provision in question does not make criminal the act of cruelly causing an animal to be killed by a direct and actual act that is in and of itself not cruel.”

An appeal of the sufficiency of the evidence requires us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 99 S.Ct. 2781].)

The jury was instructed that “[e]very person who cruelly kills any animal or causes any animal to be cruelly killed in a grossly negligent manner is guilty of a felony cruelty to an animal.” Gross negligence was defined as “negligent acts which are aggravated, reckless or flagrant and which are such a departure from what would be the conduct of an ordinarily pmdent, careful person under the same circumstances as to be contrary to a proper regard for life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen and it must appear that the death was not the result of inattention, mistake, judgment or misadventure, but the natural and probable result of an aggravated, reckless or flagrantly negligent act.”

The prosecution had to prove that Leo’s cruel death was the natural and probable result of an aggravated, reckless or flagrantly negligent act. “Cruel” means “willfully or knowingly causing pain or distress to others. 2. enjoying the pain or distress of others. ... 3. causing or marked by pain or distress: a cruel remark; a cruel affliction ... CRUEL implies willingness to cause pain, and indifference to suffering: a cruel stepfather.” (The Random House Dict, of the English Language (2d ed. unabridged 1987) “cruel” p. 483, original italics.) In saying being run over by a minivan is not “cruel,” defendant engages in “hypertechnical parsing” of the statute “rather than determining the reasonably likely interpretation given [it] by reasonable jurors [citation] ....” (People v. Speegle (1997) 53 Cal.App.4th 1405, 1413 [62 Cal.Rptr.2d 384].) Defendant ignores the aggravated, reckless, and flagrant nature of his attack on Leo and the pain and shock it inflicted. Defendant swooped down on Leo while he was in a safe place on his owner’s lap inside her car, snatched him off his feet and threw him with some force from chest height about five to six feet away from the car onto a dark roadway in a heavy rain. Initially, Leo appeared stunned to onlookers. Then, with rain pouring down on him and headlights and cars coming at him out of the dark, he appeared “terrified” as he ran through the traffic. McBumett “could tell by his eyes he was just running scared” and described him as “crouching with his tail tucked under” as dogs do “when they’re terrified or injured.” The natural consequence of defendant’s throwing Leo onto a dark, heavily traveled road was death from the wheels of a passing vehicle. Leo’s death was cruel, that is, “marked by great pain or distress.” (The Random House Dict, of the English Language, supra, at p. 483.) Substantial evidence established that defendant was the cause of the cruel death of Leo.

PROXIMATE CAUSE

Next, defendant asserts that the trial court’s errors in instmeting the jury on proximate cause requires reversal. First, the court “totally failed” to fill in the blanks in pattern instruction CALJIC No. 3.40, which advises the jury of the specific act it needs to find resulted from the crime charged. Second, the court “totally failed to give” CALJIC No. 3.41 on concurrent proximate causes, and “totally failed to give” any instruction on what does or does not constitute an intervening, superseding cause. As a result of these errors, “the whole concept of proximate causation was never properly presented to the jury by appropriate instructions.”

First, defendant asserts the court should have inserted “death of an animal” every place in the instruction where the pattern jury instruction has “_(result of the crime)_.” (CALJIC No. 3.40.) The court instructed: “To constitute the crime of a violation of Penal Code Section 597[, subdivision] (b), there must be in addition to the result of the crime an unlawful act or omission which was a cause of that result of the crime. The criminal law has its own particular way of defining cause. A cause of the result of the crime is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the result of the crime and without which the result of the crime would not occur.”

Defendant did not request a more specific instruction during the trial. “[W]hen a court has generally instructed on a point, defendant must make a request for a more specific instruction or be deemed to have waived the point on appeal.” (People v. Shoals (1992) 8 Cal.App.4th 475, 490 [10 Cal.Rptr.2d 296].) In addition, “the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538 [224 Cal.Rptr. 112, 714 P.2d 1251].) Thus, “ ‘[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ ” (Id. at p. 539.) The court instructed that “Every person who cruelly kills any animal or causes any animal to be cruelly killed in a grossly negligent manner is guilty of a felony cruelty to an animal. [1] In order to prove this crime, each of the following must be proved: [