Federal Judiciary

People v. Frazier (Cal. Ct. App. - April 29, 2009)

By Shaun Martin

You get an extra several years in prison if you "personally" inflict great bodily injury on another person. It doesn't count if you direct someone else to do it; even if you tell your friend "Get him!," and the friend does, there's a California Supreme Court case on point that says the enhancement doesn't apply. Because you didn't "personally" inflict the injury.

Now for the present case. What if the person you say "Get him" to isn't actually a person, but is instead a dog? So the dog commits the attack, not you. Same result? Enhancement or no?

Justice Sims says that's different. And I agree with him. We treat dogs like other types of property. If you use a knife to slice someone, you've "personally" inflicted injury. If you use a car, same thing. Ditto for dogs.

What's interesting is to figure out if the result would be the same in a world in which we didn't treat animals as property; if we really adopted the "guardian" or other rationales that are occasionally advanced. Would the result then be different in this case?

Plus, although I fully agree with Justice Sims, I wonder if his reasoning is entirely correct. He says that the enhancement applies because unlike the situation in which you tell another human (i.e., the principal) to attack, and hence only aid and abet, "the law does not recognize dogs as having the mental state that can incur criminal liability." As Justice Sims puts it succintly: "[D]ogs do not possess the legal ability to commit crimes.
As a consequence, a dog cannot be a principal to a crime" and hence the California Supreme Court's holding is inapplicable.

I initially thought this was correct. But then I thought: Well, wait a minute. What if you tell a three-year old, or an insane person, to attack another? Those people often as a matter of law similarly lack the mental state to incur criminal liability. But I presume the California Supreme Court's ruling would still apply, as you still did not "personally" inflict the injury. (I admit that I haven't actually looked up any cases on this point, but this seems reasonable as a matter of first principles.)

So what I really think is that the defendant here "personally" inflicted the injury not because dogs cannot be criminally liable, but rather because they are deemed property and hence mere instrumentalities. Which in turn heightens the issue about whether the rule here would be the same if we treated them otherwise.

I like the cases that make you think. This one's definitely one of 'em.

Full post as published by California Appellate Report on April 29, 2009 (boomark / email).