Section 2952 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The first bracketed paragraph is to be used when the victim is by law incapable of
being held to the ordinary standard of care under the law of negligence. (See People
v. Berry (1992) 1 Cal.App.4th 778, 785–786 [2 Cal.Rptr.2d 416] [children under five
are deemed incapable of negligent acts.]) If the parties agree that the alleged victim
was under five years old or incapable of taking responsible precautions, the court
may omit element 5 and not give the bracketed paragraph.
Penal Code section 399.5(c) states that “nothing in this section shall authorize the
bringing of an action pursuant to” three listed situations. If any of these defenses are
raised, give CALCRIM No. 2952, Defenses: Negligent Control of Attack Dog.
AUTHORITY
•
Elements. Pen. Code, § 399.5.
•
Victim Incapable of Negligence Due to Lack of Capacity. People v. Berry (1992)
1 Cal.App.4th 778, 785–786 [2 Cal.Rptr.2d 416].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 455.
CALCRIM No. 2951
VANDALISM, LOITERING, AND TRESPASS
746

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
BENCH NOTES
Instructional Duty
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 reason