Filed 4/13/18 P. v. Scherbenske CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

THEODORE JASON SCHERBENSKE,

Defendant and Appellant.


C076970

(Super. Ct. No. CM036727)





A pit bull owned by Ruben Cambra mauled an elderly woman. Soon after the mauling, defendant Theodore Jason Scherbenske raced to the scene and hurried away with Cambra and the pit bull. A jury convicted defendant of being an accessory after the fact to the crime of failing to maintain control of a dangerous animal, and the trial court placed him on probation.
Defendant now contends (1) the evidence is insufficient to sustain the conviction, (2) the trial court failed to identify Cambra as the perpetrator in the instruction for accessory after the fact, and (3) the trial court failed to instruct the jury concerning the elements of failure to maintain control of a dangerous animal as they related to Cambra.
We conclude the evidence was sufficient to convict defendant of being an accessory after the fact to the crime of failing to maintain control of a dangerous animal. In addition, defendant forfeited both of his jury instruction contentions because he failed to object to the instructions in the trial court and the instructions did not affect his substantial rights. Accordingly, we will affirm the judgment.
BACKGROUND
Chic Gordon resided next door to V.L., sharing a common fence. At least two dogs were commonly on Gordon’s property: a Queensland Heeler named Shane and a pit bull named Gus. The Queensland Heeler was owned by defendant, and the pit bull was owned by Ruben Cambra. Defendant and Cambra did not live on the property, but they visited frequently. Defendant is Gordon’s boyfriend, and Cambra is Gordon’s son. Defendant spent time working on Gordon’s property, including maintaining the fences.
Details about the pit bull’s aggression in the days and months before the attack on V.L., and the various actors’ knowledge of that aggression, are recounted in the discussion portion of this opinion pertaining to defendant’s assertions concerning the sufficiency of the evidence.
On May 21, 2012, V.L. went into her backyard carrying a stick to check whether the fruit on her plum tree needed to be thinned. As she was hitting the limbs and knocking off some of the fruit, she heard dogs barking on Gordon’s property. The pit bull came through the fence from Gordon’s property and attacked V.L. The Queensland Heeler followed the pit bull through the fence. V.L. tried to hit the pit bull with the stick and with a tumbler she was holding, but it had no effect on the dog. The pit bull bit her legs, ripping the flesh. Again following the pit bull’s lead, the Queensland Heeler also bit V.L., first on the leg and then in the upper part of her body, but the Queensland Heeler was not as aggressive as the pit bull.
V.L.’s great-grandson came out of the house and saw what was happening. V.L. yelled to him not to come off the porch but to call his mother and 911. V.L.’s 13-year-old dog was hiding under the porch.
V.L. saw Gordon standing on her property, so she called to Gordon for help. Gordon saw what was happening but did not move toward V.L.’s property at first. Eventually, Gordon came to the fence, and then went around to the gate and into V.L.’s yard. The dogs were still biting V.L.
When Gordon got to V.L.’s property, she tried to call the dogs off for 15 to 20 seconds, but they did not respond. Finally, Gordon pulled the pit bull off of V.L., and the Queensland Heeler stopped biting. After getting the pit bull off of V.L. and securing it, Gordon put some towels on V.L.’s legs.
V.L.’s granddaughter, who is the great-grandson’s mother, arrived soon after Gordon put the towels on V.L.’s legs. The granddaughter told Gordon to get off the property, and Gordon complied.
Gordon called defendant and referenced an emergency. As paramedics were en route to the V.L. residence with lights and sirens, defendant, in a white truck, crossed the center line of a two-lane road and passed the paramedics going between 75 and 80 miles per hour. When defendant arrived at the Gordon residence, Cambra and the pit bull got into the truck, and the truck sped away.
The next day, Officer Ryan Soulsby with Butte County Animal Control met defendant at Gordon’s residence and had a conversation across the fence. Defendant told Officer Soulsby the pit bull was with its owner. Officer Soulsby took the Queensland Heeler, which had still been at the property. Defendant called Cambra to tell him the officer would be coming to take away the pit bull. Officer Soulsby located the pit bull at Cambra’s residence. The dog had dried blood on his head, fur, and collar. The blood on the dog matched V.L.’s DNA.
The attack broke both of V.L.’s legs and caused a large amount of soft tissue injury, exposing muscle and bone. She also had other bites and wounds from head to toe. The injuries required multiple surgeries.
Gordon testified it was V.L.’s own dog that attacked her, and she and the pit bull came to V.L.’s rescue. After the attack, Gordon said she called defendant instead of 911 because of the “nepotism that I have faced since I moved to Butte County.”
The district attorney charged Chic Gordon and Ruben Cambra with one count each of failing to maintain control of a dangerous animal. (Pen. Code, § 399, subd. (b) -- counts 1 & 2.) The information also charged defendant with one count of being an accessory after the fact to Ruben Cambra’s crime of failing to maintain control of a dangerous animal. (§§ 32, 399, subd. (b) -- count 3.)
Defendant was tried by jury along with Chic Gordon. Ruben Cambra was not a defendant at the jury trial. The jury found Gordon guilty of failing to maintain control of a dangerous animal, and it found defendant guilty of being an accessory after the fact to the crime of failing to maintain control of a dangerous animal under section 399, subdivision (b).
The trial court suspended imposition of sentence and placed defendant on probation for three years with a 30-day jail term.
DISCUSSION
I
Defendant contends the evidence is insufficient to sustain his conviction for being an accessory after the fact to the crime of failing to maintain control of a dangerous animal. We conclude there was sufficient evidence to sustain the verdict.
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We reverse for lack of substantial evidence only if “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In an instruction based on CALCRIM No. 440, the trial court directed the jury that to convict a person of being an accessory after the fact to a felony under section 32, the prosecution must prove:
“1. Another person, whom I will call the perpetrator, committed a felony;
“2. The defendant knew that the perpetrator had committed a felony;
“3. After the felony had been committed, the defendant either harbored, concealed, or aided the perpetrator;
“AND
“4. When the defendant acted, he intended that the perpetrator avoid or escape arrest, trial, conviction, or punishment.”
The prosecution alleged defendant was an accessory after the fact to Cambra’s crime of failing to maintain control of a dangerous animal under section 399, subdivision (b). In an instruction based on CALCRIM No. 2950, the trial court directed the jury that to convict a person of failing to maintain control of a dangerous animal under section 399, subdivision (b), the prosecution must prove:
“1. The defendant had custody or control of a dangerous animal;
“2. The defendant knew that the animal was dangerous;
“3. The defendant failed to use ordinary care in keeping the animal;
“4. The animal caused serious bodily injury to [V.L.] while the defendant failed to use ordinary care in keeping it; and
“5. [V.L.] took all precautions that a reasonable person would have taken in the same situation.”
Defendant argues the evidence is insufficient to prove Cambra committed a felony -- the first element of the accessory crime -- because (A) Cambra did not have custody or control of the pit bull, (B) Cambra did not know the pit bull was dangerous, and (C) Cambra did not fail to exercise ordinary care in keeping the pit bull. Defendant adds that even if Cambra committed the crime, the evidence is insufficient to prove defendant was an accessory because (D) defendant did not know Cambra committed the crime.
A
Defendant asserts the evidence is insufficient to prove Cambra committed a felony because Cambra did not have custody or control of the pit bull. Gordon was keeping the pit bull at her house, and the jury was never instructed that the first element could be satisfied based on ownership of the dog, rather than just custody or control.
Section 399, subdivision (b) provides: “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.” (Italics added.) The purpose of the statute is “ ‘to protect people against fatal attacks by “mischievous animals,” where the victim is in no way at fault for the attack. [Citation.] 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.’ [Citation.]” (People v. Flores (2013) 216 Cal.App.4th 251, 259.)
Defendant does not dispute that Cambra owned the pit bull. Instead, defendant observes that the jury instruction did not include ownership, arguing: “Thus, the jury could not have made a finding, based on the instructions given, that Cambra’s ownership of the pit bull was sufficient to meet this first element.” But defendant provides no authority for his proposition that we are limited to considering only the law as given in the jury instructions when determining whether the evidence is sufficient. Thus, he forfeits the argument. (People v. Callegri (1984) 154 Cal.App.3d 856, 865 [argument without authority deemed forfeited].)
We measure the sufficiency of evidence in a criminal case against the statutory definition. In a similar case, the United States Supreme Court recently wrote: “A reviewing court’s limited determination on sufficiency review thus does not rest on how the jury was instructed.” (Musacchio v. U.S. (2016) __ U.S. __, __ [193 L.Ed.2d 639, 648].) “[A] sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.” (Id. at p. ___, [193 L.Ed.2d at p. 647].) Because the evidence established that Cambra owned the pit bull and ownership is sufficient under the statute, the evidence was sufficient as to that element of section 399, subdivision (b).
In any event, Cambra had custody or control of the pit bull at the time of the attack. Cambra is blind and kept the pit bull at his residence at times, but he also kept the pit bull at Gordon’s property more than half the time because she provided training to Cambra on how to handle the pit bull. On the day of the attack, the evidence indicates both Cambra and the pit bull were at Gordon’s residence. Defendant arrived soon after the incident, gathered up Cambra and the pit bull and took them away. The evidence was sufficient to establish that Cambra had custody or control of the pit bull.
B
Defendant next argues no rational jury could conclude Cambra knew the pit bull was dangerous. To the contrary, the record supports a reasonable inference that Cambra knew. The pit bull exhibited its dangerous propensities several times at Gordon’s residence before the attack at issue in this case.
V.L.’s granddaughter spoke to Cambra about the pit bull. She expressed her concern to Cambra that the pit bull was not safe and that it was able to get through the fence. She testified that after speaking with Cambra but three months before the attack on V.L., the granddaughter was near her car at V.L.’s property when the pit bull came through the fence from Gordon’s property, growling and barking aggressively. The granddaughter’s children were inside the car. The granddaughter jumped into the car to avoid the dog, but the dog continued to bark and growl aggressively, preventing her from leaving the car. The dog jumped at the door where the granddaughter was sitting. The granddaughter honked her horn for about five or 10 minutes until Gordon came out of her house. Gordon yelled at the dog, and it returned to the yard through the fence. That same month, the granddaughter was on V.L.’s property pruning trees when the pit bull came running down the fence line. It barked, growled, and lunged aggressively toward the fence. The granddaughter gathered up her children and went inside the house. She notified animal control about the incidents.
Officer Soulsby visited the Gordon property in response to the granddaughter’s complaint. He was unable to contact Gordon, but he left an official notice and some informational fliers. The notice advised that animal control had received reports of dogs getting off the property and being aggressive; it asked Gordon to contact animal control immediately. Several days later, Officer Soulsby returned. He honked his horn because the gate was locked, but he received no response. He posted a citation because the three dogs he saw at the residence, including the pit bull, were not licensed to Gordon.
The following month, Officer Soulsby returned to the Gordon residence. He found Gordon there and spoke to her. He advised her of the reports of the dogs running loose and acting aggressively and about the requirements of the county code concerning dangerous dogs. Gordon said she was not the owner of the dogs, so the officer asked her to have the owner contact him immediately. Soon after that, defendant and Cambra went to animal control and licensed the dogs as their own. Defendant licensed the Queensland Heeler, and Cambra licensed the pit bull.
Later that month, the great-grandson, in second grade, was playing football with his cousin in the yard at V.L.’s residence when the pit bull came through a hole in the fence. It ran aggressively towards them. The great-grandson’s uncle yelled for them to run. The cousin ran into the house and the great-grandson jumped into the bed of his uncle’s truck. The pit bull put its paws on the truck, barking, growling, and showing its teeth. V.L.’s 13-year-old dog bit the pit bull, and the pit bull ran away. After that experience, the great-grandson was afraid to play in the yard. V.L. called animal control about the incident, and the uncle spoke to Gordon about the dog getting out and chasing the boys. Gordon said they were guard dogs and were “not trained to be nice.”
Officer Soulsby posted a citation against Cambra at the Gordon property. He posted it at the Gordon property because that was the address reported to animal control for the pit bull. No one responded from the residence, so the officer made a video recording of the fence line. As he was doing so, the pit bull acted aggressively. According to the officer, the dog “on many occasions lunged at the field fencing, pushing his body partially through the openings. His body behavior was that of aggression; his ears were pointed forward, his eyes rarely removed contact from me, his posture and his body weight were presenting as aggressive that they were going forward, never in retreat.” Officer Soulsby subsequently had a phone conversation with defendant. He told defendant animal control had received calls about aggressive dogs coming off of Gordon’s property. The officer told defendant the fence at the Gordon property needed to be fixed so the dogs could not escape.
The granddaughter said she told Cambra the pit bull was not safe and was able to get through the fence. In addition, Gordon is Cambra’s mother, and she was also aware of those circumstances. She testified that she trained Cambra on how to work with the pit bull. In her words, she had “to train the handler [Cambra] to train the dog.” From this evidence, the jury could reasonably infer that Gordon, knowing of the pit bull’s dangerous propensities, notified Cambra of those propensities as part of her training on how to handle the dog. Also, soon after Officer Soulsby asked Gordon to speak to the dogs’ owners about their aggression and the need for licensing, defendant and Cambra appeared at animal control to license the dogs, again leading to the reasonable inference that Gordon told Cambra about the pit bull’s aggressive actions.
Defendant acknowledges there was also evidence the pit bull exhibited aggressive behavior at Cambra’s residence, not just at Gordon’s. On one occasion, a child was playing with some of her friends on a trampoline in the backyard next door to Cambra’s residence. A wooden fence separated the two yards. The children were being noisy. The pit bull got through the fence and growled and barked at the children, trying to get onto the trampoline. The dog was acting vicious and mean. The child’s aunt yelled at the pit bull, and it ran back to Cambra’s yard.
The evidence, considered as a whole, was sufficient to support the jury’s reasonable inference that Cambra was aware of the pit bull’s dangerous actions and propensities.
Defendant notes there was some evidence that the pit bull was well-behaved and that various people were not afraid of it. However, that evidence does not overcome the sufficiency of the evidence that the pit bull was dangerous and that Cambra knew it.
C
Defendant argues Cambra did not fail to exercise ordinary care in keeping the pit bull. But there was sufficient evidence to the contrary. In addition to the evidence that Cambra knew the pit bull was dangerous, the granddaughter had told Cambra the pit bull was able to get through the fence at Gordon’s property. She informed him of one hole in particular, but Cambra did nothing to fix it. From this evidence, the jury could conclude Cambra failed to exercise ordinary care in keeping the pit bull.
D
Defendant adds that even if Cambra committed the crime, the evidence is insufficient to prove defendant was an accessory because defendant did not know Cambra committed the crime. He claims there was no evidence he had any information regarding the pit bull’s prior aggressive behavior, and no evidence he knew Cambra failed to exercise ordinary care in keeping the pit bull. To the contrary, there was sufficient evidence.
Defendant knew Cambra owned the pit bull. He went with Cambra to license the dog. Defendant saw the citation left at Gordon’s residence regarding the aggressive nature of the pit bull. Officer Soulsby spoke to defendant by phone in April 2012. The officer informed defendant of the reports of aggressive dogs getting off the property at the Gordon residence and that corrective action needed to be taken. After the conversation with Officer Soulsby but before the attack on V.L., defendant helped Cambra and Gordon in an attempt to repair part of the fence around the Gordon property.
Thus, defendant had prior knowledge that the pit bull was aggressive and was capable of escaping the Gordon property. Also, there is no dispute that defendant sped to the Gordon residence after the attack on V.L. and took the dog and Cambra away. The jury could reasonably infer that defendant acted with such haste because he knew that Cambra failed to exercise reasonable care in preventing the pit bull from attacking someone. This was sufficient evidence defendant was an accessory after the fact to Cambra’s crime of failing to maintain control of a dangerous animal.
II
Defendant further contends the trial court failed to identify Cambra as the perpetrator in the instruction for accessory after the fact. But defendant forfeited this claim by failing to object to the standard jury instruction. The use of the word “perpetrator” rather than Cambra’s name did not affect any substantial right of defendant because the instruction accurately described the crime and the jury was informed of who the perpetrator was by both the court (in the reading of the information) and the prosecutor.
The information charged defendant with being an accessory after the fact to the crime of failing to maintain control of a dangerous animal under section 399, subdivision (b), a crime the information alleged was “committed by Ruben Cambra.” Using the standard CALCRIM instruction, the trial court instructed the jury on the elements of being an accessory after the fact. The instruction included the following element: “Another person, whom I will call the perpetrator, committed a felony.” The remainder of the instruction likewise referred to a “perpetrator.” (CALCRIM No. 440.) The standard instruction does not call for the trial court to name the “perpetrator.”
Defendant did not object to the instruction in the trial court. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. (Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193.) The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
During jury selection, the trial court read the allegations from the information to the jury panel. In its reading, the trial court inaccurately identified Chic Gordon as the perpetrator of the crime to which defendant was alleged to have been an accessory after the fact. After a sidebar discussion, the court corrected itself as follows:
“Ladies and gentlemen, I read Count 3 incorrectly, so I want to make sure we’re all on the same page. [¶] So in Count 3, it is alleged that . . . the crime of accessory after the fact . . . was committed by [defendant], who unlawfully, having knowledge that the crime of a violation of section 399(b) of the Penal Code . . . had been committed by Ruben Cambra -- Cambra, C-A-M-B-R-A -- did conceal Gus the dog and aid Ruben Cambra with the intent that he might avoid an[d] escape from arrest, trial, conviction, and punishment for said felony.”
During closing argument, the prosecutor reminded the jury that defendant was being prosecuted for being an accessory after the fact to Cambra’s crime.
In his opening brief, defendant does not mention that the trial court read the information to the jury or that the prosecutor reminded the jury that Cambra was the perpetrator with respect to defendant’s crime. In his reply brief, defendant claims the reading of the information to the jury before trial was insufficient to apprise the jury of who the “perpetrator” was as to the count alleged as to defendant. We disagree. The court emphasized (partly because of its prior error in identifying Gordon as the perpetrator) that defendant was alleged to be an accessory after the fact to Cambra’s crime. And the prosecutor reminded the jury of that allegation. This procedure did not detrimentally affect defendant’s substantial rights. In other words, it is not reasonably probable defendant would have obtained a different result if the jury had been instructed differently. (See People v. Watson, supra, 46 Cal.2d at p. 837.)
Because the absence of Cambra’s name in the accessory instruction did not affect defendant’s substantial rights, he forfeited the issue on appeal.
III
In addition, defendant asserts the trial court failed to instruct the jury concerning the elements of failure to maintain control of a dangerous animal as they related to Cambra. He claims the trial court instructed on those elements as to Gordon but did not include a similar instruction as to Cambra. This is significant, defendant argues, because defendant was convicted of being an accessory after the fact to Cambra’s crime, not to Gordon’s crime.
Defendant forfeited this contention by failing to object to the jury instruction. The instructions, as given, did not affect defendant’s substantial rights because, even though the instruction related the crime to Gordon, it was equally and easily applied to Cambra.
As noted above, an element of defendant’s being an accessory after the fact was that Cambra committed the crime of failing to maintain control of a dangerous animal. In its instruction about the crime of failing to maintain control of a dangerous animal, the court said:
“Defendant Chic Gordon is charged in Count 1 with causing injury by failing to maintain control of a dangerous animal. [¶] To prove that the defendant is guilty of this crime, the People must prove . . . .” The court then instructed the jury on the elements. Defendant did not object to this instruction.
When an appellant contends that the trial court misinstructed the jury, we consider how a “reasonable jury” would have understood the instructions. “We credit jurors with intelligence and common sense (see People v. Venegas (1998) 18 Cal.4th 47, 80) and do not assume that these virtues will abandon them when presented with a court’s instructions. (See also People v. Arias (1996) 13 Cal.4th 92, 142 [reasonable jury would understand instruction as meaning consciousness of some wrongdoing, not of every element of offense]; People v. Cain (1995) 10 Cal.4th 1, 33-34.)” (People v. Coddington (2000) 23 Cal.4th 529, 594, overruled on other grounds as stated in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn.13.)
Defendant concedes “the jury was technically instructed on the underlying crime of allowing a dangerous animal at large,” but he claims the instruction was “only in relation to Gordon’s charges.” Based on this argument, he argues the trial court failed to instruct the jury on an element of the offense. We conclude the trial court instructed on the element at issue and that any reasonable jury would have understood how to apply the instruction.
The trial court read the information to the jury. The reading included the allegation that defendant was an accessory after the fact to Cambra’s failure to maintain control of a dangerous animal. And the trial court instructed the jury on the elements of failing to maintain control of a dangerous animal and being an accessory after the fact. A reasonably intelligent jury would have properly applied those instructions, even though the instruction concerning failing to maintain control of a dangerous animal noted that Gordon was charged with that crime but did not similarly note that Cambra was alleged to have committed the crime.
Because the trial court’s instructions to the jury did not affect defendant’s substantial rights, he forfeited the issue on appeal by failing to object in the trial court. (People v. Anderson, supra, 152 Cal.App.4th at p. 927.)
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
RAYE, P. J.



/S/
BLEASE, J.