People v. Brunette

194 Cal.App.4th 268

124 Cal.Rptr.3d 521

11 Cal. Daily Op. Serv. 4397

2011 Daily Journal D.A.R. 5295

The PEOPLE, Plaintiff and Respondent,

v.Robert Christopher BRUNETTE, Defendant and Appellant.

No. H035370.

Court of Appeal, Sixth District, California.

April 13, 2011.

See Annot., Propriety, Measure, and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute Cruelty to, Killing, or Abandonment of, Animals (2009) 45 A.L.R.6th 435;Cal. Jur. 3d, Animals, § 182.

Alfons G. Wagner, Law Offices of Alfons G. Wagner, for Defendant and Appellant (Under appointment by the Court of Appeal).

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Sharon G. Birenbaum, Deputy Attorney General, for Plaintiff and Respondent.

DUFFY, J.

A jury convicted Robert Christopher Brunette, the defendant herein, of animal cruelty and neglect. The trial court ordered him to pay a large restitution amount to the animal welfare agency that had to arrange care for the dogs it rescued. This appeal requires us to consider whether the trial court erred in not reducing the award to account for the agency's putative comparative negligence in not abating the condition sooner, and abused its discretion by not setting off revenues the agency may have received from adopting out some of the dogs.

We will affirm the judgment except for the trial court's imposition of an interest charge on the restitution award.

PROCEDURAL BACKGROUND

A jury convicted defendant of two felony counts of animal cruelty (Pen.Code, § 597, subd. (b)),¹ four misdemeanor counts of providing unfit animal living conditions ( § 597t), and three misdemeanor counts of animal neglect ( § 597.1, subd. (a)), following which the trial court convicted him of two violations of Santa Cruz County animalordinances, offenses that constituted infractions. The court sentenced defendant to a year in county jail on the misdemeanors and five years' formal probation on the felonies. Following a restitution hearing, the court ordered defendant to pay animal care restitution (see §§ 597, subd. (f)(1), 597. 1, subd. (k)) of $127,331.33 to the Santa Cruz County Animal Services Authority and declined to reduce the award on comparative fault principles or by amounts listed on an adoption fee schedule. The restitution award forms the subject of this appeal.

FACTS

This macabre case involves appalling animal cruelty. There are parallels between aspects of it and Joseph Conrad's novella Heart of Darkness: cruelty, the abandonment of civilized norms, and apparent madness; remote locations that discouraged outside investigation; and arranged displays of severed heads.

I. Prosecution Case

In 2008, responding to a neighbor's complaint, Santa Cruz County Animal Services Authority employees and sheriff's deputies visited defendant's property, located deep in the woods in a remote part of Santa Cruz County. They found defendant standing in the midst of a canine charnel house. Some dogs lay dead or dying. Most of the rest, in the dozens, were skin and bones from starvation, suffering from infection, flea-ridden to a life-threatening degree, worm-infested, panting in cages exposed to the remote area's high temperature that day, putrefying with open sores, malnourished, injured, and/or battle-scarred from fights over food. One employee witnessed dog-on-dog predation firsthand. As he stood talking with defendant through a fence, 10 or 15 dogs began to attack another dog, “just ripping it apart.” Defendant managed to fend off the attacking dogs, then removed the victim dog from the animal control employee's sight and pronounced that it was fine. The property exuded odors of excrement and septic putrefaction. The authorities found one dog that they estimated had been confined in a pickup truck cab for a month or more. The truck's windows were closed and the air temperature was in the nineties that day.

Defendant had mounted a display of aligned dog skulls at one location. Over time, the sun had bleached the skulls. At another, defendant had fastened a dog's head to the top of a trimmed tree trunk.

Defendant was operating a dog-breeding facility. He called it Gladiator Cane Corso. A would-be customer, William George Fritz, IV, testified that in 2006 defendant showed him two puppies that were in appalling condition. One of the dogs had swollen and bleeding paws. They had lost much of their hair and were emaciated, with rib cages and backbones showing. Defendant appeared indifferent to their plight. Fritz told defendant that the dogs were dying and defendant replied that he had abandoned them to their fate.

The next day, Fritz went back and rescued the dogs. He paid defendant $200 for each one. The dogs were so weak that he had to carry them to his truck. They were covered with mites, had sores, and smelled bad.

Early in 2007, Fritz complained to various agencies, including the Animal Services Authority, and each entity said that the area of defendant's property did not lie within their jurisdiction. The Animal Services Authority staff member or members he spoke to “weren't interested” in the situation.

As noted, however, in 2008 Animal Services Authority employees and one or more sheriff's deputies did visit defendant's property. Defendant barred everyone from his property and resisted furnishing identification and being cited. The law enforcement and animal regulation officials departed, but soon returned in larger numbers to execute a search warrant and rescue the dogs. This visit led to the charges against defendant. Defendant tried to evade the raiders by running toward his house but eventually let them onto his property.

II. Defense Case

Defendant testified on his own behalf.

Defendant was trying to breed various breeds of guard dogs. This was partly for business purposes and partly for personal reasons, the latter including a desire for companionship and to fend off his neighbors, whom he suspected of vandalism. He developed his dog-feeding practice according to his understanding of wolf pack feeding habits, which were competitive, but he would control and supervise the feeding for safety. He picked up animal droppings daily and kept the property mostly clean and odor-free, although he would allow feces to accumulate in one area as “a nutrient bed.”

Defendant further testified that that the severed heads belonged to dogs that he believed had been deliberately poisoned by his neighbors. He believed the same about a dead dog on his roof. Dog bodies lay about because his ribs were injured at the time the dogs had died and he was suffering from abdominal problems. Weakness and pain left him unable to bury them.

III. Restitution Hearing

Before the jury, evidence had been introduced that the Animal Services Authority had to assess the dogs that were still alive and provide medical treatment, rehabilitation, and housing services to some of them while euthanizing others. It treated and/or sheltered about 80 dogs and exhausted its funds in the course of doing so. Community donations of time and money, however, enabled the dogs to be treated properly. At the restitution hearing, the prosecutor and defense counsel both mentioned 51 dogs, but defendant's motion to reduce restitution stated that puppies were born in captivity from the captured dog population. Ultimately, the record is unclear on how many dogs were involved, but it is clear that there were dozens of them.

The trial court originally proposed to order economic-victim restitution to the agency of $149,754.73 to compensate it for the cost of providing these services.

At a restitution hearing following defendant's convictions, the trial court disallowed or reduced various items sought by the agency, thereby reducing its original calculation. Ruling against defendant in two instances, however, the court denied his request to reduce the restitution amount based on his contention that the agency was comparatively at fault under principles articulated in People v. Millard (2009) 175 Cal.App.4th 7, 95 Cal.Rptr.3d 751( Millard ). It also denied his request to set off against the agency's expenses $4,835 in fees listed on an adoption schedule that the agency may have collected in placing defendant's puppies with new owners. After making these decisions, the court calculated the total restitution due the Animal Services Authority to be $127,331.33 and ordered defendant to pay this amount to the agency.

The basis for defendant's comparative-fault argument was that the authorities, apparently including the Animal Services Authority, had discovered equally bad conditions on his property in 2005 and done nothing to remediate them, thereby allowing him to breed more dogs and generate more rehabilitation expenses for the Authority.

In support of this argument, defense counsel alluded to the following information about events in 2005:

In a pretrial motion, the prosecution sought to introduce under Evidence Code section 1101 evidence surrounding the service of an administrative warrant on defendant's property on November 30, 2005. The prosecution wrote: “[What] Deputy Lansdowne mainly remembers is the smell of the property. There was feces all over the area, and he remembers that he had to walk carefully to not step in any dog poop. After they executed the warrant, he had to wash off his boots. When they came to the property, he assisted in cutting the gate for the Planning Department. When they entered the property, they either used a road flare or a fire extinguisher to scare the aggressive dogs away. [¶] As they entered the property, there was a bunch of dogs that were in a cage up to the ‘left’ of the property and a series of dogs that were just running loose. He remembers that one dog was in a cage and Animal Control took the dog [because] it was sick.”

In the hearing on the pretrial motion, the prosecutor...