Filed 5/13/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A135252
v.
ARMANDO GONZALES FLORES, (Sonoma County
Super. Ct. No. SCR611939)
Defendant and Defendant .
In this case, we are called upon to determine whether substantial evidence
supports the conviction of defendant Armando Gonzales Flores regarding the attack of an
elderly man by a pit bull owned by defendant. California does not criminalize mere
ownership of a pit bull or any similar animal. However, if a person knows his or her
animal is mischievous and fails to exercise ordinary care, and as a result a human being
suffers serious bodily injury or death, that person may be prosecuted pursuant to Penal
Code1 section 399. On appeal, defendant maintains he used ordinary care and that the
victim‟s injuries were not sufficiently severe so as to constitute serious bodily injury. We
affirm.
I. EVIDENCE AT TRIAL
A. Prosecution’s Case
1. The Charged Incident
On December 12, 2011, nearly 90-year-old William Siemsen, was living at 2827
Marlow Road in Santa Rosa. Having just finished lunch, he was sitting in a chair in the
front yard of his house when a dog came from the house next store, got hold of his 9-
1
Unless otherwise specified, all further statutory references are to the Penal Code.
1
year-old black Labrador, Luna, shook her and dropped her. The dog then bit Siemsen on
his left leg, below the knee.
Santa Rosa Police Officer Stephen Bussell was driving home in his personal vehicle
when he saw defendant‟s pit bull, Blue, chasing Luna in front of Siemsen‟s residence.
Officer Bussell saw the dogs fight, he saw Luna break free of Blue, and then he saw Blue
attack Luna again as Luna got near Siemsen, who was sitting in a chair near his garage.
Siemsen yelled at the dogs as they fought. The dogs were up against Siemsen and it
“almost looked like he was getting pushed over in his chair.” He hit both dogs with his
cane before Luna broke free of Blue. Officer Bussell then saw Blue bite Siemsen once,
possibly twice. Officer Bussell described Siemsen‟s wound as “maybe half an inch wide
by two to three inches in length . . . it was severely deep.” Officer Bussell instructed
defendant to secure Blue in a vehicle parked at defendant‟s neighboring residence.
Defendant grabbed Blue by the collar and put him in the nearby car. According to
Officer Bussell, defendant appeared to be under the influence of alcohol.
Sonoma County Deputy Sheriff Adrian Mancilla responded to the incident and was
directed to assist Siemsen in getting to the hospital. Deputy Mancilla took photos of
Siemsen‟s injury before and after medical treatment and prepared a report. He observed
one small puncture wound and one large puncture wound to Siemsen‟s left leg. There
appeared to be more, however. According to Mancilla, there was so much blood on
Siemsen‟s left lower leg that it was hard to see the puncture wounds.
Siemsen was taken to the emergency room and treated by Mark LaGrave, M.D.
Dr. LaGrave described the dog bite as “a dramatic injury,” a deep laceration that “wasn‟t
something that superficial.” Dr. LaGrave explained that he chose to loosely close the
wound with four sutures due to drainage concerns and the potential for infection. In
assessing the severity of the wound, Dr. LaGrave expressed concerns regarding
Siemsen‟s advanced age and diabetic status. As such, he believed the injury required
“close follow-up and excellent wound care.” Dr. LaGrave opined that it would take
months before Siemsen would have full use of his leg again.
2
After the bite, Siemsen‟s leg hurt for hours. His leg was bandaged for a week, and
he had a neighbor take him back to the hospital every three days to get the bandages
changed. Ultimately, the wound healed and left no scar. Siemsen explained that he was
“half crippled” before the attack and that the injury “[j]ust slowed everything down.”
Following the injury, someone brought Siemsen his dinner in the evenings.
Sonoma County Deputy Sheriff Michelle Buchignani was dispatched to 2827
Marlow Road. At the scene, defendant seemed “very, very nervous.” After being
advised of his Miranda rights, defendant told Officer Buchignani that Siemsen would not
have been bitten if he had not tried to hit Blue. According to Deputy Buchignani, at the
scene, defendant “was minimizing the victim‟s injuries.” Deputy Buchignani testified
that defendant had the slight odor of alcohol about him, but was not acting intoxicated.
Defendant told Deputy Buchignani that the county was aware of Blue‟s history and
as a result Blue had been microchipped and neutered. According to Deputy Buchignani,
defendant “blam[ed]” the county for Blue‟s violence. Defendant told her that “the dog
had [] been aggressive with other dogs in the past, had attacked other dogs in the past.”
Deputy Buchignani described Blue as a “[r]eal powerful” animal, with a big head and
large, muscular chest. As Blue was being removed from the vehicle by animal control
staff, he “resisted quite a bit,” biting at the staff and pulling back from them. In contrast,
Deputy Buchignani described Siemsen‟s dog, Luna, as an older dog, approximately 10
years old with a graying muzzle, that appeared “very submissive” and exhibiting no
aggressive behavior.
Sonoma County Animal Control Officer Jeff Clemens responded to the scene.
Officer Clemens described Blue‟s behavior as “[v]ery concerning,” as “[t]he animal was
an extremely large animal. It displayed certain body language that was very, very
obvious that it was a dangerous, dangerous animal.” As he approached the vehicle where
Blue had been contained, he heard a “very deep, low . . . growl.” Officer Clemens
observed that Blue had a “very direct, challenging eye stare.” Officer Clemens, with the
assistance of two deputies, was ultimately able to remove Blue from the vehicle using a
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“rigid leash or catch pole.” Once impounded at Animal Control, Officer Clemens
remembered seeing Blue in a kennel, showing various “signs of aggression,” including a
“dominant stare,” standing in a “very strong, postured position,” as well as “growling
[and] barring its teeth.”2
2. Prior Incidents
Defendant and Blue had three prior incidents with the public. On June 29, 2011,
James Bertolini was walking his 25-pound Terrier-Beagle on a leash when Blue
charged toward him and his dog. When Blue got close, Blue started biting Bertolini‟s
dog. Bertolini picked up his own dog and tried kicking Blue to get him to stop. After
catching Blue under the chin, Blue backed off. Defendant came around the corner with
a leash in his hand and tried to get Blue under control. According to Bertolini, it took
defendant a couple of minutes to get the dog under control. Bertolini described Blue as
being “really aggressive.” Bertolini‟s dog suffered a slight puncture wound. Fearing he
might run into the dog again, Bertolini‟s wife contacted Animal Control and made a
report.
A little over a month later, another incident with Blue was reported. On August, 8,
2011, Kathleen Tryer had her dog on a leash and while walking, encountered defendant
and Blue on a pathway. Tryer offered to take her dog back the other way, but defendant
told her that he would hold his dog so she could pass. While she was trying to pass by,
defendant‟s dog started pulling on the leash and “literally dragged” defendant toward
Tryer and her dog. Even on the leash, defendant could not stop his dog from going after
Tryer‟s dog and putting its mouth on Tryer‟s dog. Everyone started yelling at
defendant‟s dog. A friend picked up Tryer‟s dog and defendant managed to pull his dog
back. Thereafter, Tryer called Animal Control to report the incident.
Less than three months later, on October 28, 2011, another incident occurred. Ruth
Richardson was standing outside her home with two adults and two kids, when defendant
opened his door to get the mail and Blue ran out the door. With Blue running towards
2
Subsequently, defendant authorized Blue‟s euthanization.
4
her, she took cover in her home and grabbed her taser. Once inside her home, Blue
“viciously” attacked her metal security screen door, which he bent while trying to get at
her. Richardson described Blue as being “very, very aggressive” and “very strong.”
Richardson testified that if she had had a regular screen door rather than the metal
security screen door, there was “no doubt” in her mind that the dog would have killed her
and her child or her friend who had run into the garage.
Richardson testified that she was “terrified of this dog.” Defendant and Blue had
lived across the street from her for about a year. Several times Blue had gotten off leash
and “came aggressively” towards Richardson and her child. And, three months before
the October incident, Blue attacked Richardson‟s cat and “put a gash in his eye.”
Richardson described Blue as being “very, very aggressive” and “very strong.”
According to Richardson, defendant could not control Blue. She described an incident
where defendant apparently had tried to take Blue out while riding his bicycle and Blue
had pulled him off his bicycle.
Michelle Drocco was at Richardson‟s house on October 28, 2011, and she
remembered a pit bull running across the street from a neighbor‟s house. As the pit bull
charged toward the group in front of Richardson‟s house, everyone ran; Drocco took
cover in Richardson‟s garage. Drocco described the dog as “[v]ery angry, agitated, [and]
scary.” According to Drocco, the owner could not control the dog. As the owner tried
pulling the dog back, the dog “kept going forward” and was “overpowering” the owner.
3. Potentially Dangerous Animal Designation
On June 30, 2011, Sonoma County Animal Control Officer Justin Foster issued a
potentially dangerous animal warning to defendant (June warning). The June warning
notice, which was admitted into evidence, advised defendant that pursuant to the Santa
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Rosa City Code “[a] potentially dangerous animal, while on the owner’s premises, shall,
at all times, be kept indoors, or in a secure enclosure.” (Italics added.) 3
On November 3, 2011, defendant voluntarily agreed to designate Blue as a
potentially dangerous animal (November agreement). The designation was based on two
occurrences of “defensive action”—on June 29, 2011, and October 28, 2011—within a
three-year period and gave rise to the requirement that Blue be neutered. The November
agreement listed various Santa Rosa City Code sections but did not further describe such
sections. Officer Foster testified that although he went over the consequences of owning
a potentially dangerous animal, he was unsure whether he advised defendant about the
specific requirements that the dog be muzzled whenever off the owner‟s property (Santa
Rosa City Code, Tit. 7, art. I, § 7-30.050(A)(2)(b), or that the dog must wear a special
collar indicating that it is a potentially dangerous animal (id. at (A)(2)(c)). Officer Foster
also could not remember whether he told defendant that he was required to post a sign at
3
We take judicial notice on our own motion of the Santa Rosa City Code Chapter
7-04.0210(O)(3) (Evid. Code, § 452), which states that a “[p]otentially dangerous
animal” includes: “Any animal which, when unprovoked, on two separate occasions
within the prior 36-month period, engages in any behavior that requires a defensive
action by any person to prevent bodily injury when the person and the animal are off the
property of the owner or keeper of the animal.” (Santa Rosa City Code, Tit. 7 Animals,
Ch. 7-04 General Provisions, § 7-04-010, Definitions.) The Santa Rosa City Code further
requires that “[a] potentially dangerous animal, while on the owner’s premises, shall, at
all times, be kept indoors, or in a secure enclosure.” (Id. at Chapter 7-30 Potentially
Dangerous and Vicious Animals, Art. I, § 7-30.050, Disposition of potentially dangerous
animals, subd. (A)(2); italics added.) Owners of potentially dangerous animals are also
required to muzzle their animal when off the owner‟s premises, as well as outfit the
animal with a collar or other device clearly visible at all times that designates the animal
as a potentially dangerous animal. (Id. at subds. (b)-(c).) Additionally, the owner must
post a large sign in a conspicuous place on the property advising that a potentially
dangerous animal is kept at this place. (Id. at (A)(3).) At trial, defendant attempted to
challenge the propriety of the designation of Blue as a potentially dangerous animal and
further attempted to disclaim any knowledge of the requirements in keeping such an
animal. However, the propriety of that ruling, with its attendant requirements, was not
before the trial court and is not an issue on appeal. (See id. at § 7-30.020.)
6
his residence indicating that a potentially dangerous animal was at the premises.~(RT 9
719-720)~ (Santa Rosa City Code, § 7-30.050(A)(3).)
B. Defense Case
Armondo Gomez testified that on December 12, 2011, he was living at 2821 Marlow
Road, next door to Siemsen. Defendant and his son were staying with him. On that date
Blue was tethered to a “big chain,” four feet long and anchored in the ground in the front
yard. According to Gomez, Siemsen‟s Labrador Luna came on to his property and barked
at Blue. It was in response to the barking that Blue got loose from his collar and chased
Luna back on to Siemsen‟s property. Gomez did not see Blue get loose and did not know
how Blue was able to get loose. Gomez also did not see Blue chase Luna. The next
thing he saw was the two dogs on Siemsen‟s property. Gomez then saw defendant trying
to get Blue off of Luna, and heard Siemsen yelling for Blue to get off of Luna, and saw
Siemsen hitting Blue with a cane. Gomez testified that both dogs were biting each other
and that he “guessed” Siemsen got bit by Blue, but stated that he did not see it happen.
Gomez denied that either he or defendant were drinking alcohol that day. Defendant
and Gomez put Blue in a truck. Gomez testified that he had never seen Luna on a leash
and that this was not the first time Luna had been on his property. Gomez had never seen
Blue break free from where he had been tethered outside his house. He had also never
seen Blue act aggressively toward anyone or any dog.
Margaret Hernandez testified that on December 12, 2011, she was living at 2821
Marlow Road. Prior to that date, she had never seen Blue untethered while outside. In
contrast, she had never seen Luna on a leash.
Defendant‟s girlfriend, Tiffany Olibas, testified that whenever defendant and his son
were staying on Marlow Road, she only observed Blue to be kept either in a doghouse in
the garage or “tied up out front on the ball and chain.” She never saw Blue unrestrained
on Marlow Road. Olibas also never saw defendant drink alcohol or smelled it on him.
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Defendant was convicted by a jury of violating subdivision (b) of section 399.
Imposition of sentence was suspended and defendant was placed on probation for a
period of three years with various terms and conditions.
I. DISCUSSION
Defendant contends his conviction must be reversed because there is insufficient
evidence that he acted without ordinary care and that Siemsen suffered serious bodily
injury within the meaning of section 399. As we shall explain, neither contention has any
merit.
A. Failure to Exercise Ordinary Care
Subdivision (b) of section 399 provides as follows: “If any person owning or
having custody or control of a mischievous animal, knowing its propensities, willfully
suffers it to go at large, or keeps it without ordinary care, and the animal, while so at
large, or while not kept with ordinary care, causes serious bodily injury to any human
being who has taken all the precautions that the circumstances permitted, or which a
reasonable person would ordinarily take in the same situation, is guilty of a misdemeanor
or a felony.”
“The basic purpose of section 399 is to protect people against fatal attacks by
„mischievous animals,‟ where the victim is in no way at fault for the attack. (Cf. People
v. Sandgren (1951) 302 N.Y. 331 [98 N.E.2d 460, 465] [explaining similar statute].) It
does so by punishing those who know their animals are „mischievous‟ but allow them to
run free or keep them in a negligent manner.” (People v. Berry (1991) 1 Cal.App.4th
778, 783.) Section 399, “[i]n seeking to protect people from fatal attacks by
„mischievous‟ animals, . . . implies that a „mischievous‟ animal is one that may be
dangerous to others if allowed to run free or kept in a negligent manner. Knowledge of
an animal‟s „mischievous propensities‟ therefore puts an owner on notice of such danger
or risk of harm, and his or her liability under the statute arises from the failure to act
reasonably with knowledge of this risk. Consequently, . . . „mischievous propensities‟ as
8
used in the statute means those propensities that may naturally pose a risk of harm or
injury to others.” (People v. Berry, supra, 1 Cal.App.4th at p. 786.)
Although there are no reported decisions discussing “ordinary care” as used in
section 399, CALCRIM No. 2950, which was given to the jury in the instant case, defines
it as “using reasonable care to prevent reasonably foreseeable harm to someone else. A
person fails to use ordinary care if he or she does something that a reasonably careful
person would not do in the same situation or fails to do something that a reasonably
careful person would do in the same situation.” In other words, section 399 requires
criminal negligence.
“Criminal negligence requires a gross violation of an existing duty of care.
[Citations.] There must be proof of „aggravated, culpable, gross, or reckless conduct,
which is such a departure from the conduct of an ordinarily prudent person under the
same circumstances as to demonstrate an indifference to consequences or a disregard of
human life.‟ [Citation.] The question is „whether a reasonable person in the defendant‟s
position would have appreciated the risk his or her conduct posed to human life.‟
[Citation.] The defendant‟s subjective awareness is irrelevant. [Citation.]” (People v.
Medlin (2009) 178 Cal.App.4th 1092, 1103; see also § 7, subd. (2).)
Here, defendant maintains that he acted as any ordinarily prudent person would
have when he tethered and chained Blue outside on December 12, 2011. Defendant
concedes that he had knowledge of Blue‟s history of acting aggressively toward other
dogs and people. However, he insists that he exercised ordinary care on the date in
question because Blue “had not broken free of his tethering before and he had not bitten
anyone before.” We disagree. Although the record does not contain any evidence that
prior to the challenged incident Blue had either broken free of his tethering or had bitten a
person, that is not the relevant question. Rather, the issue is whether it was reasonable
for defendant, knowing Blue‟s propensities, to have kept Blue in the manner that he did.
There was overwhelming evidence that Blue‟s aggressiveness, combined with his
massive strength and power, made him uncontrollable and a danger to the public. Indeed,
the county designated Blue as a “potentially dangerous” animal. In the June warning
9
notifying defendant about Blue‟s impending status, a potentially dangerous animal, the
county expressly advised defendant that “[a] potentially dangerous animal, while on the
owner’s premises, shall, at all times, be kept indoors, or in a secure enclosure.” (Italics
added.) Although the November agreement wherein defendant voluntarily agreed to
Blue‟s designation as potentially dangerous animal did not explicitly state that Blue was
either to be kept indoors or in a secure enclosure while at defendant‟s residence, the
agreement nevertheless references the applicable Santa Rosa City Code section reflecting
this requirement. (See Santa Rosa City Code, § 7-30-050.)
Moreover, it is undisputed Blue had an extensive history of unprovoked aggressive
attacks. Prior to the instant incident, there had been at least three other occasions in the
preceding months where Blue had exhibited dangerous propensities in public whether or
not he was restrained. In one attack, Blue, while not on a leash, charged toward a man
and his dog. When defendant appeared with a leash, it took him several minutes to get
Blue under control. Another attack occurred despite Blue being on a leash. There, Blue
lunged at a woman and her dog, as he “literally dragged” defendant on a pathway. Even
while restrained, defendant could not stop Blue from attacking the other dog. In yet
another incident, Blue bolted through an open door in defendant‟s residence and caused a
group of people across the street to run in fear and seek cover. In the course of this
attack, Blue managed to dent a metal security screen door. The victim in that attack
testified that she was “terrified” of Blue and that there was no doubt in her mind that the
dog would have killed her and her child, or her friend who had hidden in the garage, if
she did not have the metal door in place.
Despite the positive steps that defendant took to secure Blue, on this record, the
jury could reasonably infer that defendant‟s efforts were wholly inadequate. By all
accounts, Blue was a very powerful and aggressive dog that had the ability to overpower
defendant and to injure anyone or anything in his path. Although Blue had been
restrained by a “big chain,” there was unimpeded, unsupervised access to Blue.
Accordingly, we conclude substantial evidence supports the jury‟s finding that defendant
failed to act as a reasonably careful person would in the same situation.
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To the extent defendant suggests that Siemsen was partially at fault for allowing
his dog Luna to “torment” Blue and for hitting Blue with his cane, these claims similarly
are without merit. There was conflicting evidence regarding where the attack began.
According to Siemsen, Blue came onto his property and attacked him and his dog.
Although defendant‟s friend, Gomez, testified that Luna came onto his property and
barked at Blue, Gomez neither saw how the fight started nor how Blue became
untethered. Gomez also did not see Blue bite Siemsen. The only other witness to the
attack was Officer Bussell, who testified that he only saw the two dogs on Siemsen‟s
property. With respect to Siemsen‟s use of his cane, Officer Bussell testified that it was
only after Blue starting attacking Luna, that he saw Siemsen hit both dogs in order to stop
the attack. This evidence demonstrates that Siemsen used his cane defensively. (See,
e.g., People v. Lee (2005) 131 Cal.App.4th 1413, 1429 [person has right to reasonable
self-defense when confronted by an aggressive dog]; People v. Wicker (1974) 78 Misc.
2d 811, 814 [357 NYS.2d 597] [defendant entitled to self-defense when he shot and
killed a vicious dog that ran onto his property and attacked his dog].) We conclude that
substantial evidence supports the conclusion that Siemsen was not at fault for the attack
or his injuries.
In sum, given Blue‟s prior history—his demonstrated viciousness in attacking
other dogs, unprovoked; his attempted unprovoked attack of Richardson and her family
and friends, together with defendant‟s inability to overcome his dog‟s strength, even on a
leash—leaving Blue chained up, close to a public sidewalk in a residential neighborhood,
unattended in an unenclosed area, constitutes substantial evidence to support the jury‟s
finding that appellant failed to act as a reasonably careful person would in the same
situation.
B. Serious Bodily Injury
Defendant next contends there was insufficient evidence that Siemsen suffered
serious bodily injury.
It is well settled that the determination of the extent of such an injury is essentially
a question of fact for the trier of fact, not a question of law. “ „ “Whether the harm
11
resulting to the victim . . . constitutes great bodily injury is a question of fact . . . .
[Citation.] If there is sufficient evidence to sustain the . . . finding of great bodily injury,
we are bound to accept it, even though the circumstances might reasonably be reconciled
with a contrary finding.” ‟ [Citations.]” (People v. Escobar (1992) 3 Cal.4th 740, 750;
see also People v. Kent (1979) 96 Cal.App.3d 130, 136-137 [observing that concepts of
“serious” and “great” bodily injury are substantially similar].)
Section 399 does not further define “serious bodily injury.”4 However,
CALCRIM No. 2950, which as noted previously was given to the jury, defines it as “a
serious impairment of physical condition. Such an injury may include, but is not limited
to: loss of consciousness, concussion, bone fracture, protracted loss or impairment of . . .
any bodily member or organ, a wound requiring extensive suturing, and serious
disfigurement.”
Here, there was evidence that Siemsen was badly bitten by defendant‟s dog.
Photographs documenting his injuries were submitted to the jury. Siemsen suffered
extensive bleeding and was taken to the emergency room by ambulance. He suffered two
puncture wounds, one of which required four sutures. Defendant suggests that victim‟s
injuries did not constitute a “serious impairment of physical condition” within the
purview of section 399, because the injury healed and left no scar. Defendant adds that
“four sutures” does not constitute “extensive suturing.”
We do not find critical to our determination the fact that the wound ultimately
healed leaving no scar. Nor do we agree that the wound was not serious because it only
required four sutures. Although this may well not constitute “extensive suturing,” the
treating emergency room doctor testified that the number of sutures used was
discretionary and that he elected to use fewer sutures and not close the wound tightly, in
4
As the court in People v. La Fargue (1983) 147 Cal.App.3d 878, 886-887, aptly
noted: “The term „great bodily injury‟ has been used in the law of California for over a
century without further definition and the courts have consistently held that it is not a
technical term that requires further elaboration. [Citations.]”
12
what he termed “loose approximation,” because he was concerned, given the wound‟s
depth and source, about the potential for infection.
We must view the evidence as a whole, under a deferential standard of review, to
ascertain whether there is substantial evidence upholding the jury‟s conclusion that
Siemsen‟s injuries constituted serious bodily injury. In the present case, there exists
substantial evidence from which the jury could conclude that the puncture wounds—even
though they left no scars and caused no permanent disability, when combined with the
victim‟s age, status as a diabetic, his extensive follow-up wound care, and lengthy
recovery period—were injuries that were more than merely transitory, or lacking in
seriousness. (See People v. Johnson (1980) 104 Cal.App.3d 598, 609.) The treating
emergency room doctor characterized the wound as “dramatic,” which “wasn‟t
something that superficial.” Although Dr. LaGrave did not believe the wound would
permanently disable Siemsen, he did opine that it would take a long time to heal, and
would require close follow-up and excellent wound care. Further, Dr. LaGrave opined
that Siemsen‟s use of his leg would be compromised for months. Moreover, Siemsen
testified that upon discharge he had to have someone come to his house to assist him in
the days that followed.
Accordingly, we conclude that substantial evidence supports the jury‟s conclusion
that Siemsen‟s injuries constituted serious bodily injury.
III. DISPOSITION
The judgment is affirmed.
REARDON, P. J.
We concur:
RIVERA, J.
HUMES, J.
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Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Kenneth J. Gnoss
Counsel for Appellant: Brian Hong
Counsel for Respondents: Kamala D. Harris
Attorney General of California
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Senior Assistant Attorney General
Rene A. Chacon
Supervising Deputy Attorney General
Juliet B. Haley
Deputy Attorney General
14