Thursday, April 30, 2009
Woman Who Told Dog to Attack ‘Personally’ Inflicted Injury—C.A.
By KENNETH OFGANG, Staff Writer
A woman who commanded her dog to attack another woman properly received an enhanced sentence for having “personally” inflicted great bodily injury upon the victim, the Third District Court of Appeal ruled yesterday.
The court affirmed the conviction and sentence of Kathy Frazier for assaulting Denise Doll. Justice Richard Sims III authored the opinion.
Witnesses at her trial in Sacramento Superior Court testified that at the time of the January 2007 attack, Frazier was living in a tent next to a house belonging to the Cervantes family. Frazier was responsible for cleaning the house and yard as well as taking care of the family’s two dogs.
Witnesses said that both Frazier and Angelica Cervantes spent time with the dogs, and that the animals were trained to obey their commands. Cervantes once ordered the dogs to attack a man who had been talking to Frazier, and Frazier witnessed the attack, according to the testimony.
A neighbor testified that there had been earlier attacks as well.
Doll testified that when she walked past the Cervantes house, Frazier commanded the dogs to “get her, get her,” and one of the dogs bit deeply into her leg, causing her to bleed profusely. She told the jury that the attack left scars and that she was still in pain and had trouble walking.
Only after Doll’s fiancé heard her screaming and ran to her aid did Frazier call back the dogs.
Doll said Frazier told her that she sent the dogs after her because she was upset at Doll for leaving Blackmon alone with another woman at that woman’s house. A neighbor testified that Frazier said she “had her reasons” for commanding the dogs to attack Doll.
Doll said she barely knew Frazier and had never been in an argument with her or antagonized the dog.
A sheriff’s deputy testified that when he went to the house the day after the attack to inform Frazier that the dogs had to be quarantined as a result of the attack, she attempted to prevent him and an animal control officer from capturing the animals. She was eventually handcuffed and placed in a patrol car so the officers could do their work.
Jurors found Frazier guilty of assault with force likely to produce great bodily injury, a felony carrying a three-year midterm sentence. She was also found to have personally inflicted great bodily injury, which carries a three-year enhancement, and was convicted of false personation, a misdemeanor, as a result of having given the deputy a phony name when she was arrested.
On appeal, Frazier did not attack the felony or misdemeanor convictions but said the enhancement should not have been imposed because it was the dog, not her, who injured Doll.
The appellate panel rejected the contention. Sims, writing for the court, distinguished People v. Cole (1982) 31 Cal.3d 568, which held that an aider and abettor was not subject to the GBI enhancement.
The court struck the enhancement in that case because the defendant had not himself struck the blows that caused the great bodily injury, but rather had instructed his accomplice to kill the victim.
Sims, however, explained that a person who orders an animal to attack is not an aider and abettor, but rather a direct perpetrator of the crime.
“Defendant...would have us declare that the dog in this case stands in the same role as the person in Cole... who hit the victim,” the justice wrote. But a dog is not a person, Sims concluded.
“We recognize the common tendency to anthropomorphize animals, especially beloved pet dogs. Though we might give a dog a name and ascribe a certain personality to the animal, the law does not recognize dogs as having the mental state that can incur criminal liability....
“Despite the physical ability to commit vicious and violent acts, dogs do not possess the legal ability to commit crimes....As a consequence, a dog cannot be a principal to a crime. Because Papas the dog could not have been a principal, defendant could not have been an aider and abettor to the attack. For this reason, Cole’s holding...that aiders and abettors cannot qualify for the sentence enhancement under [Penal Code] section 12022.7 does not apply here.”
The evidence, he went on to say, established that the dog attacked on the defendant’s command, not on innate instinct, and that the defendant knew—based on past events—that the dogs would attack if commanded to do so. “We reject defendant’s attempt to shift her blame to the dog,” the justice declared.
In an unpublished portion of the opinion, Sims rejected the argument that the defendant’s trial counsel had been ineffective for failure to request a jury instruction based on Cole and for failure to argue that there was reasonable doubt as to Frazier’s ability to control the dogs. Given the state of the law and the evidence, Sims wrote, competent counsel would not have been expected to ask for such an instruction or make such an argument, he said.
The case is People v. Frazier, 09 S.O.S. 2420.
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