Conviction for violating Penal Code section 399, subdivision (b) upheld where defendant failed to use ordinary care in securing his aggressive dog, who got loose and inflicted injury. Flores was convicted of violating Penal Code section 399, subdivision (b) (failure to exercise ordinary care of “mischievous” animal who inflicts serious bodily injury) after his dog bit and injured an elderly man. On appeal he challenged the sufficiency of the evidence that he acted without ordinary care or that his dog inflicted serious bodily injury. Held: Affirmed. Section 399 requires knowledge of the animal’s propensities, which puts its owner on notice of the potential risk of harm from his failure to act with ordinary care to prevent a reasonably foreseeable harm to another. A person fails to use ordinary care if he does something a reasonably careful person would not do or fails to do something a reasonably careful person would do in the same circumstances. Section 399 therefore requires criminal negligence, which is a gross violation of an existing duty of care that demonstrates an indifference to the consequences or a disregard for human life. The test is whether a reasonable person in the defendant’s position would have appreciated the risk of his conduct, not whether the defendant was subjectively aware of the risk. Here there was evidence that the dog’s size, strength, and aggressive history made him a danger to the public. Defendant failed to act as a reasonably careful person would to secure the dog. The victim was not at fault for the dog attack. The evidence proved criminal negligence.
There was sufficient evidence of serious bodily injury. The dog bite wounds, even though they left no scars and caused no permanent disability, when combined with the victim’s age, physical condition, and lengthy recovery period, were sufficient to prove serious bodily injury under the statute.