2951. Negligent Control of Attack Dog
The defendant is charged [in Count ______] with failing to use ordinary care in (owning/ [or] controlling) an attack dog.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (owned/ [or] had custody or control of) a dog trained to fight, attack, or kill;
2. The defendant knew or reasonably should have known that the dog was vicious or dangerous;
3. The defendant failed to use ordinary care in (owning/ [or] controlling) the dog;
4. As a result of the defendant's failure to use ordinary care, the dog (bit someone on two separate occasions/caused substantial physical injury to <insert name[s] of person[s] allegedly attacked>)(;/.)
<Give element 5 unless alleged victim not capable of taking precautions; see Bench Notes.>
5. <insert name[s] of person[s] allegedly attacked> took all the precautions that a reasonable person would have taken in the same situation.]
[If the People have proved that <insert name[s] of person[s] allegedly attacked> (was/were) (under the age of five years/ [or] incapable of taking reasonable precautions because <insert reason for incapacity>), then the People do not need to prove item 5 and you do not have to find that (he/she/they) took all the precautions that a reasonable person would have taken in the same situation.]
Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to use ordinary care if he or she (does something that a reasonably careful person would not do in the same situation/[or] fails to do something that a reasonably careful person would do in the same situation).
The court has a sua sponte duty to give an instruction defining the elements of the crime.
The first bracketed paragraph is to be used when the victim is by law incapable of being held to the ordinary standard of care under the law of negligence. (See People v. Berry (1992) 1 Cal.App.4th 778, 785-786 [2 Cal.Rptr.2d 416] [children under five are deemed incapable of negligent acts.]) If the parties agree that the alleged victim was under five years old or incapable of taking responsible precautions, the court may omit element 5 and not give the bracketed paragraph.
Penal Code section 399.5(c) states that "nothing in this section shall authorize the bringing of an action pursuant to" three listed situations. If any of these defenses are raised, give CALCRIM No. 2952, Defenses: Negligent Control of Attack Dog.
Elements. Pen. Code, § 399.5.
Victim Incapable of Negligence Due to Lack of Capacity. People v. Berry (1992) 1 Cal.App.4th 778, 785-786 [2 Cal.Rptr.2d 416].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Public, § 366.
(New January 2006)