Santa Rosa Dog Owner Loses Appeal in Pet Attack Case (CA Penal Code §399)

Santa Rosa Dog Owner Loses Appeal in Pet Attack Case (CA Penal Code §399)

Rabin Nabizadeh
May 15, 2013

Armando Flores of Santa Rosa found himself in a bit of a pickle after a state appeals court upheld his conviction pursuant to CA Penal Code §399 (failure to control a “mischievous” pet by using “ordinary care”).  The original incident occurred in December of 2011, when Flores’s pit bull “Blue” somehow got loose from the chain he was attached to in the owner’s front yard.  A nearly 90-year-old man, Flores’s neighbor, was evidently in his own yard that day with his black lab, which Blue promptly went after.  The elderly man proceeded to hit Blue with his cane, causing the dog’s attention to shift to biting the man’s left leg, costing him a short trip to the emergency room for a laceration.

The question then became twofold: 1) did Flores know that his pit bull was a dangerous animal and, if so, 2) did he take what are termed “ordinary care” to prevent his pet from harming others?  CA Penal Code §399 is a “wobbler” in the state of California – a person can be charged with either a felony or a misdemeanor in the case.  In particular, a felony charge will usually follow the death of another person due to an animal’s conduct, whereas Flores only faced a misdemeanor, sometime in county jail, and a fine.

The state appeals court determined that chaining Blue up in the front yard was a less than satisfactory was for Flores to have exercised “ordinary care,” but what option did he have?  The evidence in the case reveals that Blue had been in trouble before – for attempting to attack other dogs, mainly.  So, the argument is that Flores should have been more careful.  We have to wonder, however, whether or not the pit bull breed, which has been discriminated against in the past as having a tendency toward violent behavior, was acting out of self-defense – the elderly man was in the process of hitting the dog with his cane when the attack occurred.

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