CA Penal Code Section 399: Who Does It Actually Protect? Dogs or People?

We were sent this data which is on the dogsbite blog, we are not saying we agree that dogsbite is a good blog or that we even like it. We are pointing out that Kory Nelson, of  Denver CO fame, who hates all pitbull or pitbull look alikes, or coulda been, might be or should be a “pit” is ingrained in his brain–makes some  comments as to the CA PC 399 law.   That being said, it is still interesting that California Penal Code Sect. 399 supposedly requires prosecutors to “prove” that the person killed by a vicious dog took reasonable precaution to avoid harm? {See the PC 399 law below}

Calaveras County, CA

On March 22, 2011 reported that Calaveras County Superior Court Assigned Judge Thomas A. Smith ruled that Sheryl Sellers would not face trial on felony charges in the death of  Jerry Yates……….she kept two pit bulls in a fenced area of the yard but they escaped….

Sellers was arrested and booked her into jail for allowing vicious animals at large.

 The judge cited California Penal Code Section 399, which requires prosecutors to prove that the person killed by vicious dogs took “reasonable precautions” to avoid harm. The Judge allegedly stated there was a failure of any actual evidence as to what precipitated the attack, and thus, a lack of what reasonable conduct the victim engaged in?  In other words, the victim could have engaged in unreasonable conduct perhaps? It could be possible that (from defense standpoint) an animal was provoked, and such provocation would be a defense; or, if it was a known fact that the dogs had already been previously attacking people, it would seem illogical that the victim would approach such dogs or rent to someone who had such dogs. We don’t know the factors so it is very difficult to ascertain the truth. It would seem the owner would be negligent if not criminally liable.

We reviewed attorney Kenneth Phillip’s dog bite blog (he also hates any bully type dogs, or larger guardian dogs,etc; we also suspect he was attacked by dogs before) but of course, everyone hates something out there…….. here is what Phillips says:

A person who knowingly keeps a dangerous dog may be prosecuted for a felony or misdemeanor if the dog seriously injures another person as a result of negligence or letting it run loose.

For example, California Penal Code section 399 (as amended in 2001) states:

PC Section 399.  (a) If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with ordinary care, kills any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a felony.

(b) If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with ordinary care, causes serious bodily injury to any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a misdemeanor or a felony.

In People v. Berry (1991) 1 Cal.App.4th 778, a dog owner was convicted under the former version of section 399 because his pit bull (Willy) killed a young child (James Soto, 2 years and 8 months of age) who came onto the dog owner’s property without the consent or knowledge of the dog owner. The attacking dog was one of three pit bulls. The court said that:

Willy was bred for gameness and wind and had a hard bite. Defendant specially trained Willy on a treadmill to condition him. Defendant told Richard Soto, Arthur Soto’s brother, he would not fight Willy for under $500. He also warned him that Willy was “vicious and dangerous” and if he got loose he could “do a job” on certain people. He said he had a wedge to pry Willy’s mouth open if he needed to. 1 Cal.App.4th at p. 781.

One of the defenses was that the dog was not “mischievous.” The defendant relied on commonly accepted authorities that dogs and all other domesticated animals are not considered dangerous or mischievous as a matter of law. While the Court did not take issue with that proposition, it was noted that this particular pit bull was trained to participate in dog fights. As a result of that training, the Court held that the dog could be found to be mischievous, and the conviction was upheld. The Court wrote:

[W]e hold that ‘mischievous propensities’ as used in the statute means those propensities that may naturally pose a risk of harm or injury to others. (1 Cal.App.4th at p. 786.)

The Court also said:

Willy [the pit bull] was not a regular house pet. Rather, the jury found that defendant trained Willy and kept him as a fighting dog and that it was reasonably foreseeable that he might kill the victim. There also was evidence of Willy’s fighting ability and defendant’s warnings to others that Willy was dangerous to humans. (1 Cal.App.4th at p. 786.)    Note that the case does not stand for the proposition that a particular dog will be legally deemed mischievous simply because its breed is known to be unusually powerful and aggressive; the key fact in this case is that the particular dog was trained to fight.

“The defendant raised Civil Code section 3342 (the dog bite statute) as a defense, saying that, because a trespasser cannot sue for monetary damages under CC Section 3342, the defendant had no duty to protect a trespassing child, and therefore the defendant could not be convicted under CA PC section 399. The Court disagreed, saying, “nothing in this civil statute suggests that it creates a defense in a criminal action based on the victim’s status as a trespasser.” (1 Cal.App.4th at p. 788.)”

“The defendant was found guilty of involuntary manslaughter, keeping a mischievous animal, keeping a fighting dog, and cultivating marijuana.”

“In the Diane Whipple case, both of the defendants are charged with the prior version of Penal Code section 399, among other things. (See The Diane Whipple Case on this web site,”

“In 2013, the United Kingdom called for public comments regarding a proposal to impose a life sentence on dog owners whose dogs kill a person. Read Owners of killer dogs may face life: Crackdown after 16 fatal maulings in eight years. Interestingly, the USA had 18 fatal maulings in the first 8 months of the same year, with pit bulls the killers in 16 of those cases, and yet there were no similar effort to increase the penalties here. ”


The blogger of dogsbite contacted Kory Nelson, Senior Assistant City Attorney for the City and County of Denver, who has publicly stated that a pitbull in the street should be shot……….. After Smith’s ruling, Nelson replied with the following:

“California Penal Code Section 399 – requires prosecutors to prove that the person killed by vicious dogs took reasonable precautions to avoid harm”

While I am not an expert in the California Penal Code, and I am unaware if any other section would be more applicable to these facts, this overview of the law is quite disturbing for a number of reasons:

    1. I know of no other criminal law that requires victims to take any action to avoid harm before the defendant can be convicted; a victim is a victim. Imagine if other criminal laws also put such a burden upon potential victims? What did the alleged victim of rape do to prevent being assaulted? What did the victim of the drive-by-shooting do to prevent bullets from penetrating their home? Did the pedestrian even attempt to jump out of the way of the car that ran the red-light? Did they jump in the correct direction – or high enough?
    2. Dead men tell no tales. This law gives an advantage to those dog owners whose dogs actually kill, rather than merely maim or seriously injure, their victims. The law should never bestow a benefit upon a party for the infliction of a greater harm upon another party.
    3. What if the victim were a child or an infant? How could such a victim take any action to avoid harm, let alone those that a trier of fact could be deemed to be reasonable? For every action of a child, I could pose a legal argument why their action was not reasonable:
      1. The child attempted to run away from the dog [The child’s actions sparked the dog’s natural instinct to chase]
      2. The child screamed [The child’s action scared the dog, causing it to bite out of fear]
      3. The child stepped on the dog’s tail [natural reaction to pain]
  1. The predictable debate over the term “reasonable precautions” fails to set the legal parameters for a jury to determine the outcome. Should the term be viewed from the perspective of the innocent actor who is completely ignorant of animal behavior – or from the perspective of the expert animal behaviorist? As described above, in the face of an aggressive dog, animal behaviorists would probably advise against turning and running away from the dog, as such behavior may spark the dog’s natural instinct to chase its prey.


  1. However, a child or even an adult who has not had a significant amount of exposure to dogs may be understandably ignorant of such recommendations – therefore, would the dog owner’s attorney be allowed to call expert witnesses to testify before the jury about such “common sense” dog behavioristics, such that the attorney would be allowed to argue the victim “caused” the attack by running away – an “unreasonable act” from the perspective of the highly educated expert?


  1. Americans who, for whatever reason, are either unfamiliar with dogs – or who choose not to have dogs as pets – should not have their health, safety or welfare protected to a lessor standard merely because the party who brings a dangerous animal into their community would like to avoid their legal duty of protecting their fellow citizens from the dangers of their poor choices and/or poor animal management techniques. I’m certain these owners of dangerous dogs would like to displace their guilty and legal duty by shifting the duty of protection from the owner and manager of the dangerous implement to the innocent victim. Shame on the lawmakers for allowing such a perverted system of justice to allow innocent victims to be so unjustifiably exposed to such horrible dangers as a tenacious and vicious mauling by animals with sharp teeth who will bite and rip their victims bodies to shreds – the most horrible way for a human to die imaginable.

In conclusion, this law, if reported accurately in the news article, is a travesty to justice and should be changed immediately.
While it may be one thing to provide a legal defense to dog owners such that a child or adult who is physically abusing the dog, or is actually engaging in an unlawful act against the dog’s owner – such as assault, or burglary, would not be protected by such a law – but is something completely different to place a legal duty on children and adults to take affirmative action to prevent the harm reasonably foreseeable by the dog owner.


Well we never thought we would say it, but the wording on the law should be changed to reflect that the conduct of the victim and the dog, when taken together, is always different in nearly every case. Thus the history of the offending animal should be considered, as well as the background of the victim.  A child simply cannot be expected to have insight or knowledge significant enough to know better in most cases, and thus the parent is usually blamed.  For adults, toxicology testing could indicate drugs, alcohol or other scientific evidence post mortem.  It is unlikely that most people go looking to be killed by a dog, but perhaps as an example, the teenagers that were attacked by a tiger who jumped the wall at the San Francisco Zoo, supposedly had alcohol in their car and MJ in their system. The tiger had previously bitten the zookeeper in 2006, mangling her arm.
There was a recovery for the victims in part because the wall was not “high” enough? 

“Two days after the attack, on December 27, 2007, the zoo retracted its prior claim that the grotto’s moat wall was 18 feet (5.5 m) tall, after officials measured it and found it was actually 12.5 feet (3.8 m) tall. The AZA recommendation for big cat enclosures is a moat wall of 16.5 feet (5.0 m). Tatiana’s paws were also found to carry concrete chips, suggesting that she climbed out of the moat using her claws on the wall…”