more likely than not that ( <insert name[s] of person[s]
allegedly attacked> (was/were) trespassing[,]/ [or] [ <insert
name[s] of person[s] allegedly attacked>] provoked the dog[,]/ [or] the
dog was being used in military or police work).]
New January 2006
Penal Code section 399.5(c) states that “nothing in this section shall authorize the
bringing of an action pursuant” to this statute in the three situations described
above: i.e., the bitten trespasser; the injured party who provokes the dog or who
contributes to his or her own injuries; or the police or military dog performing in
that capacity. No case presently addresses the issue of who must bear the burden of
proving the existence or nonexistence of these facts.
Because the very bringing of a prosecution is barred under the circumstances stated
in subdivision (c), it appears the Legislature intended to place these factual
situations outside the scope of its criminal prohibition. This is to be contrasted with
affirmative defenses such as entrapment, where the defendant’s conduct is within
the statute’s facial reach but subject to an exception to the general rule based on
considerations other than guilt or innocence. (See People v. Mower (2002) 28
Cal.4th 457, 476–483 [122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing at length
affirmative defenses and burdens of proof]; 4 Witkin & Epstein, California Criminal
Law (3d ed. 2000), Pretrial Proceedings, § 202.) That being so, the burden of
proving beyond a reasonable doubt the nonexistence of the subdivision (c)
circumstances would properly be placed on the prosecution. (See People v. Mower,
supra, 28 Cal.4th at p. 482 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) However, there
must still be sufficient evidence to permit a reasonable jury to have a reasonable
doubt about whether one or more of the circumstances existed before an instruction
on this issue would be required.
Alternative paragraphs on both the reasonable doubt and preponderance of the
evidence standards have been included. The court must choose, at its discretion,
either alternative A—reasonable doubt standard, or alternative B—preponderance
• Defenses. Pen. Code, § 399.5(c).
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 366.
CALCRIM No. 2952 VANDALISM, LOITERING, AND TRESPASS