CALCRIM No. 2951. Negligent Control of Attack Dog (Pen. Code, § 399.5)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2951.Negligent Control of Attack Dog (Pen. Code, § 399.5)
The defendant is charged [in Count ] with failing to use ordinary
care in (owning/ [or] controlling) an attack dog [in violation of Penal
Code section 399.5].
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;
[AND]
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.>
[AND
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).
New January 2006
735
BENCH NOTES
Instructional Duty
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.
AUTHORITY
• 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].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 455.
CALCRIM No. 2951 VANDALISM, LOITERING, AND TRESPASS
736

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