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Name: People v. Tom
Case #: C083983
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 04/13/2018

Defendant could not be convicted of violating both subdivision (a) and (b) of the animal cruelty statute based on the same conduct. Defendant beat, stabbed, and strangled a small dog, and attempted to burn the deceased dog’s body. He was convicted two counts of animal cruelty (Pen. Code, § 597, subd. (a)—count one, & subd. (b)—count two), obstructing an officer (Pen. Code, § 148, subd. (a)(1)), and attempted arson (§ 455). On appeal, defendant argued his conviction on count two should be reversed because it was based on the same conduct supporting the count one conviction. Held: Count two reversed. Under subdivision (a) of section 597, a person is forbidden from intentionally killing, torturing, or maiming a living animal. Subdivision (b) provides: “Except as otherwise provided in subdivision (a) or (c),” a person is prohibited from inter alia torturing, cruelly beating or killing, or subjecting an animal to needless suffering. Applying principles of statutory construction and analogizing to Delgado v. Superior Court (1977) 74 Cal.App.3d 560 and People v. Burnick (1975) 14 Cal.3d 306, the court concluded that the “except as otherwise provided in subdivision (a)” language creates an exception to when subdivision (b) applies. Thus, while a defendant may be convicted of violating both subdivisions based on separate conduct, the plain language of the statute prohibits convictions under both subdivisions based on the same conduct. In this case, the prosecutor argued that the same five factors supported both the intentional killing charge under subdivision (a) as well as the unjustifiable pain and suffering charge under subdivision (b), and no unanimity instruction was given. Because it was likely the jury convicted defendant of violating both subdivision (a) and (b) based on the same conduct, the court reversed count two.

The trial court was not required to stay the attempted arson sentence under Penal Code section 654. Defendant argued that because he killed and attempted to burn the dog’s body during a single course of conduct, section 654 precludes sentencing him for both offenses. Section 654 prohibits multiple punishments for the same conduct. However, where a defendant acted with multiple independent criminal objectives, he may be punished for independent violations, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Here, the trial court could reasonably conclude that in strangling the dog, defendant intended to kill the dog, whereas in putting oil on the dog’s body and attempting to light it on fire, he intended to burn the evidence of his crime. The fact that the crimes occurred in close temporal proximity does not mean that defendant harbored only one criminal objective when committing the offenses. Because defendant committed multiple divisible acts with distinct objectives, he was properly sentenced on both counts.

The full opinion is available on the court’s website here: