People v. McDonald
v.
RICHARD McDONALD, Defendant and Appellant.
Court of Appeals of California, Second District, Division Six.
Sherilyn McDonald for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang, Tannaz Kouhpainezhad, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERREN, J.
Miguel Ascencio was bitten by a dog owned by appellant Richard McDonald. McDonald was charged with the felony of owning a dangerous dog (Pen. Code, § 399, subd. (b))[1] as well as maintaining a public nuisance, keeping an illegal kennel, and violating animal ownership requirements which are misdemeanor violations of local municipal ordinances. He was acquitted of the dangerous dog felony and the public nuisance misdemeanor, but convicted of the other two misdemeanors. McDonald was placed on probation subject to payment of a victim restitution fine regarding the dog bite. (§ 1202.4, subd. (f).) McDonald appeals the judgment contending the trial court erred by imposing a victim restitution fine as a condition of probation. We affirm.
FACTS AND PROCEDURAL HISTORY
McDonald owns dogs which are housed in a kennel on the property surrounding his residence. At any given time, there are between 15 and 30 dogs of various breeds living on the property, including dogs commonly referred to as pit bulls. In May 2007, animal control officer Jacquie Green observed 17 dogs in makeshift kennels. Green concluded that the dogs were not being kept in a safe or sanitary condition, and ordered McDonald to reduce the number of dogs to the legal limit of three by June 11, 2007. Green visited the property numerous times thereafter and the number of dogs continued to exceed the legal limit. Certain neighbors complained to McDonald regarding the dogs.
In February 2008, Miguel Ascencio was working on McDonald's property. A pit bull owned by McDonald got out of his cage and bit Ascencio on the arm and foot. The injuries were serious and required surgery.
In June 2008, McDonald was charged with the felony of owning a dangerous dog (§ 399, subd. (b)),[2] and the misdemeanors of maintaining a public nuisance (Walnut Mun. Code, § 10.40.065, subd. (b)),[3] keeping an illegal kennel (id. at § 10.28.060),[4] and violating animal ownership requirements (id. at § 10.40.010).[5] After a jury trial, McDonald was convicted of keeping an illegal kennel and violation of animal ownership requirements, but acquitted of owning a dangerous dog, and maintenance of a public nuisance.
The trial court suspended imposition of sentence, and placed McDonald on five years formal probation, subject to serving 90 days in county jail which was stayed pending completion of various requirements regarding the condition of the property at a specified later date. As a condition of probation, McDonald was ordered to pay victim restitution to Miguel Ascencio in an amount to be determined by the probation officer.
DISCUSSION
McDonald contends the trial court erred in ordering him to pay restitution to the victim of the dog bite. He claims he was exonerated of criminal responsibility for the dog bite injuries because the jury found him not guilty of keeping a dangerous dog and maintaining a public nuisance, and the restitution order was not related to the crimes for which he was convicted. We disagree.
Probation is generally reserved for persons convicted of crimes whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see § 1203.1.) The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, to impose conditions to foster rehabilitation and protect public safety. (Carbajal, at p. 1120; People v. Lent (1975) 15 Cal.3d 481, 486.)
A probation condition is invalid only when it has no relationship to the conviction, concerns noncriminal conduct, and is not reasonably related to future criminality. (People v. Lent, supra, 15 Cal.3d at p. 486.) This rule is based, in part, on the principle that "granting of probation is not a right but a privilege, and that if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense he is free to refuse probation." (People v. Miller (1967) 256 Cal.App.2d 348, 356; see also People v. Percelle (2005) 126 Cal.App.4th 164, 179-180.)
Specifically, victim restitution can be ordered as a condition of probation when the loss was caused by conduct not resulting in a conviction, and even conduct which resulted in an acquittal. (People v. Carbajal, supra, 10 Cal.4th at p. 1121; People v. Lent, supra, 15 Cal.3d at p. 486.) An order for restitution, which attempts to make a victim whole, "`has generally been deemed a deterrent to future criminality,'" and is not limited to conduct of which the defendant is actually convicted. (Carbajal, at p. 1123; Lent, at p. 486.) A determination by the sentencing court will be upheld unless it is arbitrary, capricious and exceeds the bounds of reason. (Carbajal, at p. 1121.)
Here, there was no abuse of discretion. The restitution condition is reasonably related to the conduct underlying the convictions and serves the purposes of rehabilitating the offender and deterring future criminality. As the trial court stated, the conditions that existed on McDonald's property, namely, the unlawful kennel containing numerous dogs in violation of municipal ordinances, directly contributed to the dog bite and serious injury to Ascencio. Although McDonald was acquitted of the felony, it was undisputed that he had an excessive number of dogs on his property and that Ascencio was bitten by a pit bull owned by McDonald.
Also, the trial court could properly determine restitution would serve a salutary rehabilitative purpose by directing the defendant to accept the social responsibility for the consequences of his actions in maintaining an excessive number of dogs in unsanitary and unsafe conditions. (See People v. Lent, supra, 15 Cal.3d at p. 486.) In closing argument at trial McDonald's counsel argued that he had no prior knowledge that the dog would escape his pen and attack someone, but conceded that McDonald "probably did some things that were not right as far as caring for" the dog.
The judgment is affirmed.
We concur.
GILBERT, P.J.
YEGAN, J.
[1] All statutory references are to the Penal Code unless otherwise stated.
[2] As instructed by the court, a conviction for violation of section 399, subdivision (b) required the jury to find (1) McDonald owned or had custody of a dangerous animal, (2) knew the animal was dangerous, (3) failed to use ordinary care in keeping the animal, (4) the animal caused serious bodily injury to Ascencio, and (5) Ascencio took all precautions a reasonable person would have taken in the same situation.
[3] As instructed by the trial court, a conviction for violation of the public nuisance statute required the jury to find (1) there was a dangerous dog or dogs on McDonald's premises which attack other animals or trespasses on other property, (2) McDonald received reasonable notice from the department of animal control to cease the nuisance, but (3) continued to maintain the nuisance after such notice.
[4] As instructed by the court, a conviction for keeping an illegal kennel required the jury to find that McDonald maintained a dog kennel on his property without having a valid license to do so.
[5] As instructed by the court, a conviction for violation of requirements for animal ownership required the jury to find (1) McDonald owned animals or operated a dog kennel, (2) failed to maintain sanitary conditions in the kennel, and/or (3) allowed an animal to constitute or cause a hazard or a menace to the health, peace or safety of the community.