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Berry v. Superior Court

    Citation. 208 Cal. App. 3d 783; 256 Cal. Rptr. 344,1989 Cal. App. 188.

    Brief Fact Summary. Defendant Berry was charged with second-degree murder after his dog killed the child of his neighbors.

    Synopsis of Rule of Law. Second-degree murder based on an unintentional killing requires an extreme indifference to the value of human life and an awareness either of the risks of the conduct or that the conduct is contrary to law.

    Facts. The Defendant lived next door to the Soto family, and they shared a driveway. The Soto family consisted of parents Arthur Soto and Yvonne Nunez and four young children. Among them was the victim, James Soto, age two years and eight months. The Defendant owned a pit bull named “Willy” that he kept tethered in his yard with no other barrier preventing access to him. On the date in question, the victim wandered away from his mother and into the Defendant’s yard. Willy subsequently attacked and killed the victim. There was no evidence that Willy had ever attacked a person before, but there was substantial evidence that he had been trained as a fighting dog.

    Issue. Is the evidence sufficient to bind the Defendant over on the murder charge?

    Held. Yes.
    Second-degree murder based on an unintentional killing requires an extreme indifference to the value of human life and an awareness either of the risks of the conduct or that the conduct is contrary to law.

    Here, the Defendant illegally kept a fighting dog, and there is evidence that the Defendant kept the dog to guard marijuana plants. Further, despite the Defendant’s argument that second-degree murder must be caused by acts of commission rather than omission, the case law precedent dictates that the reckless failure to exercise proper care shows an extreme indifference to the value of human life.

    The Defendant kept a fighting dog in a house sharing a driveway with a family with four kids. Hence, the evidence was sufficient to bind the charge over for court.


    Discussion. A person is guilty of second-degree murder upon proof of an unintentional killing where he evidences an extreme indifference to the value of human life, and his conduct is illegal or he knew it to be dangerous.


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