Can a dog owner be criminally charged if their dog kills or seriously injures someone?

Yes, in specific circumstances. Under Penal Code section 399, an owner, or anyone with custody or control of an animal, can be charged when it kills or seriously injures a person, but only if, among other things, the owner knew the animal was dangerous and either willfully let it run loose or failed to use ordinary care in keeping it. A separate statute, section 399.5, covers dogs trained to fight, attack, or kill.

What the prosecution has to prove under section 399

Section 399 applies to a person owning or having custody or control of a “mischievous animal” who, “knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care.” If the animal, while loose or not kept with ordinary care, kills a person who took the precautions described below, the owner is guilty of a felony. If it causes serious bodily injury instead, the offense is a wobbler that prosecutors may charge either as a misdemeanor or as a felony (Penal Code section 399(a), (b)).

Two elements decide many of these cases:

• What the owner knew. The statute says “knowing its propensities,” and the jury instruction, CALCRIM No. 2950, asks whether the defendant “knew that the animal was dangerous.” Unlike section 399.5, section 399 does not add “or reasonably should have known.” Knowledge alone is not enough: the owner must also have willfully let the animal run loose or failed to use ordinary care in keeping it.
• The injured person’s precautions. The statute reaches only harm to someone who “has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation.” Under CALCRIM No. 2950, the prosecution does not need to prove this element if it proves the person attacked was under five years old or incapable of taking reasonable precautions.

Possible sentences under section 399

Section 399 does not state a sentence, so the Penal Code’s general rules supply one. A felony under section 399 is punishable by a state prison term of 16 months, 2 years, or 3 years, because the statute does not provide for a term under Penal Code section 1170(h) (Penal Code section 18). If a subdivision (b) case is treated as a misdemeanor, the limits are 6 months in county jail and a $1,000 fine, imposed alone or together (Penal Code section 19).

A dog trained to fight, attack, or kill: a separate law

Penal Code section 399.5 applies only to a person owning or having custody or control of a dog trained to fight, attack, or kill. It is a felony or a misdemeanor if, as a result of that person’s failure to exercise ordinary care, the dog bites someone on two separate occasions, or once causing substantial physical injury. The person must have known or reasonably should have known of the dog’s vicious or dangerous nature, and no one is liable if the victim failed to take all the precautions a reasonable person would ordinarily take in the same situation. The jury instruction for this offense, CALCRIM No. 2951, has the same exception as No. 2950 for a victim under five or incapable of taking reasonable precautions.

Section 399.5 sets its own penalty: as much as one year in county jail, or a Penal Code section 1170(h) term of 2, 3, or 4 years, and a fine as high as $10,000 may be imposed with or instead of custody. A section 1170(h) term is spent in county jail, not state prison, unless section 1170(h)(3) applies, which covers, among others, a defendant with a prior serious or violent felony conviction. After a conviction, the court must hold a hearing on whether the danger the dog presents to others has been removed, and it may make any order it deems appropriate to prevent another incident, including removing the dog from the area or, if necessary, its destruction (section 399.5(a), (b)).

Section 399.5 cannot be used for a bite on a trespasser, on a person who provoked the dog or contributed to their own injuries, or by a military or police dog while it was actually performing that work. Provocation includes a leashed dog reacting protectively to someone who approaches its owner or custodian in a threatening manner. The section also does not apply to a veterinarian or an on-duty animal control officer while performing their duties, or to a peace officer assigned to a canine unit (Penal Code section 399.5(c), (e)). It also states that it does not affect an owner’s liability under section 399 or any other law (section 399.5(d)).

Other charges after a fatal attack

Section 399 is not always the only charge. In People v. Knoller (2007) 41 Cal.4th 139, two dogs killed a woman in the hallway of a San Francisco apartment building. A jury convicted both owners of involuntary manslaughter and of violating section 399, and convicted one of them of second degree murder. The California Supreme Court held that a second degree murder conviction based on implied malice requires proof that the defendant acted with conscious disregard of the danger to human life, and it sent the case back for the trial court to reconsider that defendant’s motion for a new trial.

Evidence that often matters

Whether the owner knew of a dangerous propensity, and whether the owner used ordinary care, usually come down to specific facts: prior bites or other threatening incidents, and whether the owner was told about them; the fencing, gates, or leash practices actually used; past animal control complaints or citations; and veterinary or training records. What the injured person was doing at the time, such as whether they were trespassing or provoked the dog, can matter just as much.

A separate civil process for the dog

Apart from any criminal case, the Food and Agricultural Code has its own process for dogs. When an officer finds probable cause that a dog is “potentially dangerous” or vicious, animal control or local law enforcement petitions for a hearing on whether to declare it so; the hearing is a limited civil case in superior court, or a city or county administrative hearing, and no jury is available (Food and Agricultural Code section 31621).

Next steps

These cases turn on what an owner knew and did before the incident. The Law Offices of David S. Chesley reviews California dog-bite and animal-attack cases like this one. Call (800) 755-5174 with questions about your situation.