People v. Youngblood

Opinion

The defendant accumulated 92 cats and kept them in a 7%-foot by 11-foot trailer, providing less than one square foot for each cat. Convicted by jury of felony animal cruelty and placed on probation, she appeals. She asserts the trial was tainted by instructional error, due process violations, and evidence that should have been suppressed. We affirm.

Procedure

The defendant was charged by information with seven counts of animal cruelty in violation of Penal Code section 597, subdivision (b). Count 1 alleged cruelty to all 92 of the cats, while counts two through seven alleged cruelty to one specified cat each. The jury found the defendant guilty of count 1 but not guilty of counts two through seven. The court placed the defendant on five years of formal probation with a condition that she serve 92 days in county jail. The court also ordered her not to possess or care for any cat or dog, except for a cat named Holly Angel.

Facts

On December 31, 1998, Officer Robert Carter of Placer County Animal Control responded to a complaint that an excessive number of cats were being kept under poor health and living conditions in a small trailer. Officer

Officer Carter approached the trailer and looked inside through the windows. He saw at least 35 cats in the trailer. At various places in the trailer, he saw fecal matter and urine. Many of the cats were sneezing and had eye discharge. Officer Carter telephoned the on-call magistrate and obtained a search warrant for the trailer. The officer then called for a tow truck. As they were hooking up the trailer to the tow truck, the defendant arrived at the property. She stated she was taking care of the cats and believed there were between 80 and 90 in the trailer. She tried to give Officer Carter a vial with medicine for the cats, but he would not accept it because it was not adequately marked. The trailer was towed to the DeWitt Center so it could be placed in a building before being opened to prevent loss of control of the cats.

When the trailer was first opened at the DeWitt Center, Officer Carter entered with a video camera and recorded the conditions inside the trailer. The videotape was played for the jury.

The cats, 92 in all, were removed from the trailer and assigned numbers for identification. Most of the cats appeared unhealthy. They were examined and treated by a veterinarian. Her initial summary of the condition of the cats is as follows: “Most of the cats were covered in urine and feces. There [were] many that were malnourished, emaciated. Cats were sick with upper respiratory, herpes virus. They had ear mites, fleas. There [were] cats with neurologic[al] problems. There [were] cats that were missing portions of their limbs or had deformed limbs. There [were] cats with urine scald, and there [were] cats that were either blind or partially blind in one or both eyes and cats that were missing eyes, too.” The veterinarian also described other ailments suffered by the cats. Many of the problems described by the veterinarian, such as dehydration, chronic malnourishment, anorexia, urine scald, and severe infection, occur as a result of inadequate care over a long period.

The defendant testified. She lived in Sacramento County. In October 1998, she put the cats, about 35 to 40 at the time, in the trailer and moved them to the Deveany property in Placer County because Sacramento Animal Control officials told her she could not have more than four cats. She lived

Discussion

I

nstruction Concerning Elements of Animal Cruelty

Concerning the charge of animal cruelty (Pen. Code, § 597, subd. (b)), the trial court instructed the jury as follows: “Every person who causes an animal to be deprived of necessary sustenance, drink or shelter or who having care or custody of an animal subjects the animal to needless suffering or fails to provide the animal with proper food, drink, [or] shelter in a criminally negligent manner is guilty of cruelty to an animal.” And later: “In order to prove such a crime each of the following elements must be proved: One, that a person has custody or is responsible for providing care to an animal; two, that person either (a) deprived or caused an animal to be deprived of necessary sustenance, drink or shelter, or (b) subjected an animal to needless suffering in a criminally negligent manner, and (c) that act or omission caused danger to an animal’s life.” These instructions allowed the jury to find the defendant guilty of animal cruelty for committing either of the listed acts: (1) depriving the cats of necessary sustenance, drink, or shelter or (2) subjecting the cats to needless suffering.

The defendant asserts the trial court erred in instructing the jury concerning the elements of animal cruelty. She contends the trial court did not properly apply the use of the word “and” in the statute. We conclude the trial court correctly interpreted the statute.

Subdivision (b) of Penal Code section 597 provides: “Except as otherwise provided in subdivision (a) or (c), every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived

The defendant asserts the boldface, italicized “and” in the middle of the long subdivision must be interpreted to require the prosecution, in order to obtain a conviction for animal cruelty, to prove the defendant committed one of the acts listed before the “and” as well as one of the acts listed after the “and.” For example, if the prosecution established that the defendant deprived the cats of necessary sustenance, which is one of the acts listed before the “and,” it would also have to establish that the defendant subjected the animal to needless suffering or committed one of the other acts listed after the “and” in order to obtain a conviction for violation of Penal Code section 597, subdivision (b). In support of her argument, the defendant states simply that the use of the conjunctive in a statute requires proof of both elements. She makes no effort, however, to further analyze the actual language of Penal Code section 597, subdivision (b). The defendant’s argument fails when the grammatical structure of the long, complex subdivision is carefully considered.

In all material respects, the language in subdivision (b) of Penal Code section 597 was enacted in 1905. The part of the statute (“and whoever, . . .”) upon which the defendant relies to support her argument remains the same from that early date. (See Stats. 1905, ch. 519 (DXIX) § 1, p. 679.)

The use of the word “whoever” is dispositive. “Whoever” means “whatever person,” “any person at all that,” or “no matter who.” (Webster’s 3d New Internat. Diet. (1969) p. 2611.) In the structure of this statute, “whoever” is a subject, as is the phrase “every person” at the beginning of the statute. If the Legislature had meant to require proof of an act listed before “and” and an act listed after “and,” it would not have used a new subject. Instead, it would have used the word “who,” which would have referred back to the subject (“every person”) at the beginning of the sentence or it would have left that position in the sentence blank.

We must interpret a statute consistently with the meaning derived from its grammatical structure. (See Horwich v. Superior Court (1999) 21 Cal.4th

Since the defense of necessity is based on public policy, we must look to public policy to determine whether the defense was available to the defendant on the facts presented here. “[A]side from constitutional policy, the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 , 71 [ 78 Cal.Rptr.2d 16 , 960 P.2d 1046 ].)

The duties of a facility that acts as a depositary of living animals are spelled out in the Civil Code. (See Civ. Code, § 1834 et seq.) “A depositary of living animals shall provide the animals with necessary and prompt veterinary care, nutrition, and shelter, and treat them kindly.” (Civ. Code, § 1834.) The Legislature has expressly stated the public policy of this state concerning euthanasia of animals. (Civ. Code, § 1834.4.) If an animal is adoptable or, with reasonable efforts, could become adoptable, it should not be euthanized. {Ibid.; see also Food & Agr. Code, § 17005.) However, if an animal is abandoned and a new owner cannot be found, the facility “shall thereafter humanely destroy the animal so abandoned.” (Civ. Code, § 1834.5.) Particularly relevant to this case and the defendant’s assertions is a finding made by the Legislature in 1998: “The Legislature finds and declares that it is better to have public and private shelters pick up or take in animals than private citizens.” (Stats. 1998, ch. 752, § 1.)

The Food and Agricultural Code provides specifically for what a shelter must do when a stray cat is impounded. (See Food & Agr. Code, § 31752.) The facility must hold the stray cat for owner redemption for a designated time, usually between four and six days. (Food & Agr. Code, § 31752, subd.