110 Cal. App. Supp. 3d 1 | Cal. App. Dep’t Super. Ct. | 1980
Opinion
A jury found defendant guilty of violating Penal Code section 597, subdivision (b). The charge involved neglect of animals she owned.
About August 15, Duff left the area, the animals being in good condition at that time. Madrid fed the animals for about one month more —to about September 14. Defendant found out, by a phone call to Duff on September 8, that Duff would no longer pay for feed. (Defendant had been delayed in her return to her home by two car breakdowns.) On September 14, defendant called Duff, the Antelope Valley Sheriff, Madrid and Chindale (a friend) seeking care for the animals until her return. Apparently, Madrid refused both defendant’s and Chindale’s requests to work further as he had already paid out $60 of his own money for feed. Chindale testified that she volunteered to pay for the feed in her conversation with Madrid.
The animal control officer posted the premises on September 19. Defendant returned the same day. She was charged with neglect of her animals on or about September 19, 1978. There is substantial evidence that some of the animals were in a thin and dehydrated condition due to a shortage of food, water, shelter and protection from the weather. Thus the only issue is whether or not defendant had the requisite intent to be guilty of violating the statute charged.
People v. Farley (1973) 33 Cal.App.3d Supp. 1 [109 Cal.Rptr. 59] held that the offense in question “requires proof of negligence, but not more.” (Id, at Supp. 9.)
Peabody distinguishes Beaugez by stating that Beaugez was concerned, not with the quantum of negligence, but, rather with whether the statute was constitutionally vague. (46 Cal.App.3d at p. 48.) We agree with this interpretation and are more persuaded by Peabody than by Harris or Beaugez given the trend in the law, exemplified by the Stuart and Penny cases in the Supreme Court, toward limiting the number of crimes where no intent or limited criminal intent will be allowed. Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937], we are bound to follow Supreme Court and Court of Appeal decisions, but not appellate department decisions. (C.I.T. Corp. v. Biltmore Garage (1934) 3 Cal.
In our case defense counsel, relying on People v. Farley, suggested the instruction that was given.
On retrial the court should instruct the jury using CALJIC No. 3.32 (not No. 3.30) with a paraphrase of the definition of criminal negligence from People v. Peabody, supra, so that it applies to animals, not children, In addition, the trial court should be aware of the rule of law that a principal is not criminally liable for the criminal act of his agent unless he authorized, consented to, advised, aided or encouraged the specific act. (People v. Travers (1975) 52 Cal.App.3d 111, 114 [124 Cal.Rptr. 728].) Travers held that this principle does not apply to strict liability criminal offenses, but, as we have seen Penal Code section 597, subdivision (b) is not a strict liability offense. The court, on request, should instruct on this principle if the evidence shows, as it did at the first trial, that defendant was relying on friends and employees (Madrid) to care for her animals in her absence.
The judgment of conviction is reversed.
Ibáñez, P. J., and Fainer, J., concurred.
Penal Code section 597, subdivision (b) reads as follows: “(b) Except as otherwise provided in subdivision (a), every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink or
Farley states its ruling on the following words: “Therefore, it is our holding that a conviction of cruelty to animals in the sense of failing to provide them with proper food
The instruction on intent that was given in our case is: “The offense of cruelty to animals in the sense of failing to provide them with proper food and water does not require proof of criminal intent or criminal negligence, but it does require proof that the defendant was negligent in that she intentionally did an act or failed to act from which harm to the animals was reasonably foreseeable, i.e., foreseeable by a reasonably prudent person caring for animals."