In re C.H.

Filed 4/5/07 In re C.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

On June 3, 2002, the juvenile court committed C. H. to the California Youth authority (CYA) for life with the possibility of parole for attempting to murder her mother by poisoning. Her commitment was upheld on appeal. (No. F041083) On November 7, 2005, she filed a petition to set aside her commitment to CYA and to terminate the courts jurisdiction, claiming new evidence called into question the scientific conclusions of the prosecutions expert at the adjudication hearing.

The juvenile court denied her petition without conducting a full hearing. C. appeals, claiming the juvenile court applied the wrong standard of review, the juvenile courts findings are untenable, and at a minimum the juvenile court erred in refusing to set the matter for a full hearing. We will reverse the order denying the petition for modification and remand for further proceedings.

FACTS AND PROCEEDINGS

We begin by summarizing the testimony from the adjudication hearing in C.s case. We have taken judicial notice of the file in No. F041083 in this current appeal, as the juvenile court read the transcript in No. F041083 before reaching its decision to deny the petition without a hearing.

A. May 2002 Adjudication Hearing Evidence

In December 2001, 17-year-old C. was living with her siblings and their mother, Brenda. Brenda is an admitted drug abuser on methadone treatment. C. has been in and out of foster care.

Prior to the incident in question, C. told her younger sister A. that they would be better off without their mother. C. also told A. to tell her school counselor that their mother was beating them and doing drugs, even though it was not true. Also prior to the incident, A. told her school counselor that she did not want to live with her mother. A. said that her sister M. told her that their mother was using drugs. A. also told the counselor that her mother screams at her, pushes her, and pulls her hair.

C. told one of her brothers that she wanted to kill their mother. She told the same brother that she was going to use rat poison to kill their mother. C. told her brother that they would be better off in a foster home. This all occurred before the incident in question.

On December 8, 2001, C. was in the kitchen making tacos from hamburger meat. A. was in the kitchen with her. C. had a triangle-shaped yellow box of d-Con rat poison. She took out a few pebbles from the box. The pebbles were about the size of BBs. C. put the pebbles on the counter and smashed them. She put some of the meat in a bowl, sprinkled the poison on the meat, and stirred it. C. then made three tacos and told A. to take them to their mother. A. said no. C. hid the poison container behind a milk container. C. told A. not to say anything or she would put more poison in their mothers food.

C. brought three tacos to her mother, Brenda. Brenda only ate a little more than one taco. Some bites of the taco tasted bad. Brenda became ill. She was weak, throwing up, had diarrhea, and had a burning sensation in her stomach. Brenda thought she had flu. She was sick that night and the next day but she did not go to the doctor or the hospital.

On December 16, A. told her mother that C. had put rat poison in Brendas food. A. said she had not told her mother earlier because C. had threatened her. Brenda called the police. A blood sample was taken from her on December 17th.

A. talked to police detectives, including Officer Robert French, and told them in detail that she had seen C. grind up rat poison and put it in the hamburger meat that was used to make tacos that C. took to her mother.

C.s ex-boyfriend Leoba and his friend Chewy talked to A. and told her to change her story so C. could be released. A. wanted C. to get out of juvenile hall so she did as they asked and told Detective Frost that she had lied earlier when she said that C. put rat poison in the tacos. She told them a different story because she wanted things to be back to normal. That same day Leoba came over to Brendas home. He had a dress for C. because he thought she would be getting out of confinement.

On January 24, 2002, Officer French spoke to A. again. She initially said she had not seen C. put rat poison in her mothers tacos. On further questioning she asked Officer French if he would be mad at her. The officer told her he just wanted her to tell the truth. A. said that Leoba and Chewy told her to tell the police that she did not see C. put rat poison in the tacos. A. returned to her original version of events.

A. testified at the hearing consistent with her initial version of events. Brenda continued to have pain and was still ill at the time of the adjudication hearing, although it was not determined if her illness was directly related to the poisoning.

Toxicologist Ernest D. Lykissa, Ph.D., testified for the People. He identified the three categories of rat poison. The first type of rat poison uses warfarin, an anticoagulant base, and the rat bleeds to death. This same agent is given to humans in very low doses for heart conditions. The second type of rat poison is strychnine; this excites the rat to death. Strychnine is also used as a cutting agent in heroin. The third category is the arsenicals, heavy metals.

Lykissa tested Brendas December 17, 2001, blood sample for rat poison. He found no warfarin-type material and no strychnine in the blood sample. He then tested for the heavy metals. He saw very high levels of metals. Because of the seriousness of the levels, Lykissa asked for a urine sample from Brenda. The urine was collected on December 26, 2001.

The mercury in Brendas blood sample tested at 278. This is a toxic level. Lykissa noted that industrial work safety regulations view anything over 59 as not allowable. The metal toxicity in her urine was 839; Lykissa knew of no concentration greater than 800 having ever been reported previously for a living human being. He was amazed that Brenda was still alive. Lykissa predicted Brenda would not live much longer.

In his report Lykissa stated that his tests were negative for rat poison. This was because he detected no warfarin and no strychnine in Brendas samples. The high level of metals, although a part of a rat poison cocktail, does not by itself constitute a rat poison identification. Lykissa had found similar materials in individuals taking methamphetamine and in other instances that do not have anything to do with rat poison.

Lykissa also tested the rat poison. It had high amounts of lead, mercury, cadmium, arsenic, and chromium, the same metals detected in Brendas blood and urine. The active ingredient in the d-Con was brodifacoum, along with the heavy metals. Lykissa testified that the brodifacoum goes in and out of the system quickly. He testified that it has a 24-hour half life. He testified that traces of brodifacoum would not be detected a week later. Brodifacoum is a warfarin (blood thinner).

On cross-examination, Lykissa testified that because of the high levels of metals the exposure to the metals had to occur less than two years earlier.

Alan D. Barbour testified as an expert forensic toxicologist for C.. He tested the blood and urine samples for the active ingredient in the d-Con, brodifacoum, and found none. The report from the prosecution about the metals in the d-Con showed insignificant traces of mercury in the poison. Barbour testified that it would take pounds of d-Con to get the level of mercury shown in the tests on Brendas blood and urine. He testified that two or three pellets would not achieve this level. It was his opinion that there was no d-Con in Brendas blood or urine. Assuming the high levels of metal that were found by Lykissa were in fact true, Barbour said that would not be consistent with poisoning with d-Con.

On cross-examination Barbour testified that brodifacoum would only stay in ones system for 48 hours. Barbour testified that he would not trust anything coming from Lykissa or the laboratory he worked for.

Roger Peterson, the director of the Tulare District Hospital laboratory, testified on rebuttal that it would take approximately 12 pellets of d-Con to get the levels of metals in Brendas blood sample.

The court (Judge Martin Staven) made its findings as follows:

THE COURT: All right. First of all, let me just start with [A.]. The Court certainly has had ample opportunity to look at her and listen to her and decide whether she was telling the truth or not. The Court has had the opportunity to do that in court for over 34 years. So I, although Im not a magician, I tend to think I know when people are telling the truth, and usually the surrounding circumstances are very helpful with whether somebody is telling the truth or not.

In this particular case, [A.] was the one who said that she witnessed the minor putting the poison in the tacos. She changed her story, and there was an explanation for that. As it turns out, at least to me, a very believable explanation. She heard her sister say that she wanted the mother out of their life, and that statement or one similar to it was made also to the brother; that [C.], the sister had said that he -- that she wanted to kill the mother. She wanted the mother out of her life. So we have one person who made those statements and that was the minor. She made the statements to her sister in the midst of doing what she did, and she made the statements to the brother. There would be no reason that I can think of why the brother would say what he did if it wasnt true, and when it gets right down to it, there wasnt any reason why [A.] would have said that if it wasnt true. I believe [A.s] testimony. I believe what she said.

Not coincidentally, the victim became very sick, tremendous pain in her stomach, couldnt get out of bed, and vomited, had diarrhea.

Dr. Lykissa said that there were lethal levels of mercury in her blood and still is, unfortunately, at this time and also in her urine. He analyzed the D-CON. The only person who testified in this trial about analyzing the D-CON was Dr. Lykissa, analyzing in a way that would tell us all that was in it. He testified about the mercury.

Mr. Barbour testified, and he fairly quickly gave away the fact that he just doesnt like Mr. or Dr. Lykissa or Mineral King Lab, or anything to do with any of them. I certainly have read the instruction about conflicting expert opinions often enough, and I looked it up yesterday and this morning. I did not think that the expert, Mr. Barbour, was believable in a lot of respects, and I observed what Mr. Gil [Deputy District Attorney] mentioned, which was, if going in, he knew that the one substance, that so called active ingredient of D-CON be in the victims blood and urine, why would he test for it? As far as Im concerned, why would he test D-CON for it if it says right on the package that its in there? So between their opinions, Dr. Lykissas opinion is the one that has the greater weight by far.

I would venture to say that even without the mercury, what happened in this case was pretty obvious. [C.] said that she wanted the mother out of her life. She put poison in her food. The mother got extremely sick, and thats it.

We never heard a word about mercury that would have been established -- it was established. Motive, intent, she told her brother. Which set of statements you accept as having the entire statement that [C.] made in it? I wanted to kill her. We were better off without her. I think she said to [A.], Wed be better with her out of our lives. Essentially, We can do what we want to do.

There was a clear intent to kill, whether it was deliberate and premeditated, it was pretty obvious. She took the time to get the box of poison down, to get the pellets out, to put them on a surface to smash them up, to make them fine, to put them in the hamburger meat, to stir up the hamburger meat, and then give it to her mother.

When all is said and done, [A.s] testimony and the mothers illness and the finding of the D-CON would be more than enough, and the Court finds that definitely is more than enough.^[1]

In C.s appeal to this court she raised two issues. She claimed the juvenile court abused its discretion when it placed her at CYA and she contended the court erred in refusing her request for a psychological evaluation. We affirmed the judgment in No. F041083.

B. Motion to Terminate Jurisdiction

On November 7, 2005, C. filed a petition to modify previous orders of the juvenile court pursuant to Welfare and Institutions Code section 778, to set aside her commitment to CYA, and to terminate the courts jurisdiction. The basis for her motion was that there was new published scientific evidence reaching a conclusion contrary to the conclusion reached by the prosecution expert witness. The first piece of evidence was a poster presentation by Lykissa where he stated that a woman matching the description of this case had a history of involvement in illicit methamphetamine manufacture and was poisoned with heavy metals from the methamphetamine waste. The next piece of evidence was a report that the true half-life of brodifacoum is 20-62 days, not 24 or 48 hours as testified to by the experts at trial. Barbour filed a letter stating that Lykissas position at trial and his poster presentation are incompatible. In addition, C. claimed a letter from the d-Con manufacturer, not presented at the adjudication hearing, indicated that the symptoms to be expected in a d-Con poisoning case were not those manifested by Brenda and also that high levels of mercury could not have come from the d-Con. C. concluded that she should be exonerated if the evidence showed that Brenda did not exhibit evidence of d-Con rat poisoning in her system.

Attached to the motion were several exhibits. The first was an abstract written by Lykissa and others for the 2002 Society of Forensic Toxicologists (SOFT). It described the case of rat poisoning of a woman matching Brendas description and concluded that the source of the intoxication was attributed to a mixture of expended methamphetamine manufacturing waste. There was a page from a book published in 2004 detailing brodifacoum and stating that in humans the elimination half-lives of 20-62 days have been reported. Another exhibit was a letter from a toxicologist who works for the manufacturer of d-Con that was available but was not used at the original adjudication hearing. He stated that the chief manifestation that would be expected in a poisoning would be nosebleed, bleeding gums, blood in the urine, blood in feces or black stools and evidence of hemorrhage under the skin i.e. bruises. The toxicologist also reported that none of the heavy metals found in Brendas blood would be expected to be present in d-Con products at levels in excess of trace (normal background) amounts.

The People filed papers in opposition to the motion. The People argued that Lykissas paper did not contradict his testimony because he never attributed the source of the metals to rat poison. In addition, the People claimed that Lykissas testimony was superfluous and irrelevant to the question of whether C. attempted to murder her mother. Furthermore, the People asserted that the courts finding was only minimally based on Lykissas testimony. The People set forth the standard of review for the motion as an abuse of discretion standard.

At the first hearing on the matter the court requested that C.s counsel provide the court with the standard of review for the motion. In addition, the court requested a full copy of the transcript of the adjudication hearing.

Counsel for C. filed supplemental authorities arguing that the respondent did not set forth the correct standard, yet these authorities did not clearly set forth what the standard should be.

C. The Courts Ruling

Because the courts ruling is important in determining the questions before this court it is set forth in its entirety.

THE COURT: Let me tell you at the beginning what my views are, and then Im happy to hear argument from counsel.

In the first instance, the petitioner, [C.], the minor, argues to the Court that the Court must have a hearing on matters that have been raised in the petition.

And the matters that have been raised in the petition are, in their essence, that the science relied upon by the Peoples expert, Dr. Lykissa-- --that the science upon which he relied at the trial was not proper science.

And in support of that, they submit several documents. One is Exhibit A. This is from a journal article that appeared in Journal of Analytical Toxicology, volume 27, April 2003, where the Peoples expert--in fact, two of the experts, Lykissa and Roger Peterson--go on to say that the source of the intoxication was attributed to an exposure of extended methamphetamine manufacturing waste.

And the petitioner argues that that contradicts the testimony that Dr. Lykissa gave at the trial on the merits.

In further support, she argues, pursuant to a letter thats attached from Alan D. Barbour, Dr. Barbour was the defense expert, and among other claims that he makes, was that the life cycle of one of the active ingredients in the Brodifacoum has a half life of 20 to 62 days. At trial, Dr. Lykissa testified that it had a much shorter life--half-life as an active ingredient.

And he goes on to make other arguments in there, but that is the thrust of it. And he concludes that a likely source of the intoxication or the toxic material was the methamphetamine exposure.

Item C is from a text, Disposition of Toxic Drugs and Chemicals in Man, 7th edition. And in that, there is a reference at page 123 of Brodifacoum, and it describes the half-life cycle that is described in his letter, that is, Dr. Barbours letter.

And then Exhibit D is a letter dated February 20th, 2002 to Michelle Winspur of the Tulare County Public Defenders Office. And the argument with respect to that letter is that the --that this was potentially exonerating evidence that was not used at the trial.

In fact, I reviewed the transcript, and no reference was made to any letter from Reckitt & Benckiser wherein the conclusion was that the symptoms reported by the victim were inconsistent with those expected from the toxic dose of Brodifacoum. John R. DeProspo is the author of that letter, manager of product safety with, apparently, d-Con. And thats what he notes for that.

So--one other argument that the petitioner makes is that these--that reliance on the faulty science permeated the trial and so, as a consequence, the Court ought to either modify or to vacate the orders made pursuant to the trial.

This arises under very interesting circumstances because there was an appeal on the merits of Judge Stavens findings as true, the petition of attempted murder. And the Court of [A]ppeal reviewed this matter and found no basis for reversal, in fact, affirmed the decision of Judge Staven.

And so now [C.] wishes for the Court to review these matters to see if theres any basis for modification.

Ive reviewed the claims made, and I do not believe that there is a basis for modification.

Im also inclined to find that even, if for these purposes, I assumed that these are the offers of proof that were to be made, and that this would be the proof at a hearing, that it would still not cause the Court to find that Judge Staven abused his discretion or that the finding of true of the attempted murder should be set aside.

Let me address each of the arguments and why the Court makes that finding.

I reviewed the testimony of Dr. Lykissa. And at page 51, he testifies that there was no evidence of rat poisoning identification, but the metals were found. And he goes on to say, That is why I cannot specifically testify to rat poisoning at this point.

So the thrust of his testimony was that even though the metals were found, he could not specifically testify that rat poisoning was the cause of the victim having taken ill after eating three tacos.

Curiously, Dr. Lykissa was, in fact, examined as to whether the same metals could be found if someone were a drug addict. And, apparently, there was testimony that the victim was on methadone, had been a drug addict, and those questions were raised. And Dr. Lykissa addressed those concerns and testified that that was also possible. Thats what I glean from the transcript.

But it appears to me that Judge Staven, armed with that information, nevertheless, found as a matter of credibility that Dr. Lykissas testimony was credible and relied upon that. In fact, in his statement of findings, he specifically said that he found Dr. Lykissa more credible than Dr. Barbour.

That takes me to the second point. Dr. Barbour now points to this dispute about the lifespan of the active--one of the active ingredients of d-Don, the Brodifacoum. And curiously, at the trial, he, too, testified and he agreed with the premise that 48 hours was the life of Brodifacoum. Thats found at page 203 of the transcript.

So that at the time of the trial, Dr. Lykissa testified that it was in the range of 24 hours. Dr. Barbour testified that it was in the range of 48 hours. So, now, after the fact, Dr. Barbour takes issue with that.

So, again, the Court does not find that Judge Staven abused his discretion when he found that one expert was more credible than the other.

With respect to the finding on this matter, an attempted murder, Judge Staven did not exclusively rely on the experts to reach his conclusion. There was testimony from [A.] where she testified that she saw [C.] put rat poison in the tacos. This is found at various pages in the transcript, for example, pages 76, 79, 80, 83, and 84.

She subsequently did recant and change her story, but she testified that there were threats to hurt her mother if she didnt recant her testimony or her story. These are found at pages 88 through 89. Then she also explained the reason she changed her story in pages 93 and 94 of the transcript.

Again, Judge Staven, at the time, had an opportunity to observe the witnesses and could have independently reached the conclusion that [A.s] testimony, separate and apart from the testimony of the experts, was sufficient to find as true the allegation that [C.] had attempted to murder her mother, the victim.

And so even if the Court were to excise the testimony of the experts, there was an independent witness whose credibility was evaluated by Judge Staven and he could have relied on that for a finding of true as to the petition.

With respect to the final item, and that is, the failure to use the Exhibit D, the letter addressed to Michelle Winspur, from Reckitt & Benckiser, John R. DeProspo, the product safety manager for d-Con, again, because Dr. Lykissa did not specifically testify to rat poisoning and the fact that that he considered other possible exposures.

In fact--the fact that Judge Staven could have reasonably relied on the testimony of [A.] to reach the same conclusion, the Court does not find that even if his testimony or this letter were to be presented, that the Court is not satisfied that that would lead to a different result.

So for these reasons, the Court--again, even if I assume on offers of proof that this would be the testimony at a hearing, that that would not be a basis for the Court to vacate the findings of the Court to grant a new motion or to modify the minors placement at the California Youth Authority.

So that is my intended ruling, but Im happy to hear from counsel if you wish for me to address anything that you are concerned with in terms of my review of the transcript and the arguments made by counsel. No further comments were made and the intended ruling became the ruling of the court.

DISCUSSION

Welfare and Institutions Code section 778 authorizes a party or a person having an interest in a child who is a ward of the juvenile court to file a petition to change, modify or set aside an order of the juvenile court or request the court to terminate jurisdiction.^[2] The petition may be based on grounds of change of circumstances or new evidence. If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held .

California Rules of Court, rule 5.570 (formerly rule 1432), deals with requests for modification of petitions under section 778 as well as section 388. This rule mandates that [a] petition for modification must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a).) The court may deny a petition ex parte and not hold a hearing if the petition fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction, or that the requested modification would promote the best interest of the child. (Cal. Rules of Court, rule 5.570(d).)

Cases have discussed the standard to be utilized by a trial court in determining if a hearing should be held under section 388. Section 388 and section 778 are similarly worded, and we find nothing to distinguish one from the other such that a different standard would apply to a section 778 petition on the question of whether a hearing should be held. We thus apply the standard set forth in the section 388 cases to the question of the correct standard for the trial court to utilize in determining if C. was entitled to a hearing on her petition.

The [party] need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) There must be a prehearing judicial determination before the matter is set for a hearing. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 490.) If the petition fails to state new evidence that might require a change of order, the court may deny the petition ex parte. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450; Cal. Rules of Court, rule 5.570(d).) [T]o be entitled to a hearing on her petition, appellant needed only to show probable cause; she was not required to establish a probability of prevailing on her petition. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433; In re Angel B. (2002) 97 Cal.App.4th 454, 461.)

C. contends the juvenile court utilized the wrong standard when it denied her request for a hearing. Respondent acknowledges that in its ruling the juvenile court used language susceptible to a construction that it applied the wrong standard. Respondent argues, however, that the record, taken as a whole, shows that the juvenile court did not abuse its discretion in denying the modification petition.

We are convinced that the juvenile court did not have clearly in mind the correct legal standards when it denied C.s request for a full hearing on her petition. Additionally, we find as a matter of law that the evidence submitted by C. mandated the juvenile court proceed by way of a full hearing.

C. argues that the evidence unquestionably showed by a preponderance of the evidence that her welfare required the requested modification and thus her petition should have been granted. While we agree with C. that she was entitled to a hearing on her petition, we disagree with C.s analysis of how this matter should proceed.

C. refers to her petition as a petition for modification and draws the burden of proof and procedure from cases dealing strictly with modification petitions. C.s petition was more than a petition for modification; it was a petition to modify, to set aside her commitment to CYA, and to terminate jurisdiction. The basis of her petition is that new evidence calls into question the finding that she attempted to murder her mother.

In adult criminal court a motion for new trial based on newly discovered evidence must be filed before judgment is entered. (Pen. Code,  1182.) By contrast, [w]hen a juvenile is declared a ward of the juvenile court, the juvenile becomes subject to its continuing jurisdiction. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.) Thus, although a motion for new trial is not available in dependency court (In re Steven S. (1979) 91 Cal.App.3d 604, 607), a dependent (or other authorized person) may at any time file a motion to terminate jurisdiction based on new evidence. C.s petition is the functional equivalent of a motion for new trial in adult criminal court.

Rule 5.570, subdivision (i) provides that a petitioner requesting modification under section 778 has the burden of proving by a preponderance of the evidence that the wards welfare requires the modification. The motion here is not seeking modification, it is seeking termination of jurisdiction based on new evidence that calls into question the original finding that the minor committed a crime. Neither section 778 nor rule 5.570 contains the standard of review for such a proceeding. We believe that the motion should proceed in a similar fashion as a motion for new trial in adult court and reject C.s argument that she need only show by a preponderance of the evidence that jurisdiction should be terminated.

On remand the juvenile court must conduct a hearing to determine if the evidence is new and if it is such as to render a different result probable on a reconsideration of the cause. (People v. Beeler (1995) 9 Cal.4th 953, 1004.) The granting or denial of the motion would lie within the sound discretion of the juvenile court. (People v. Beyea (1974) 38 Cal.App.3d 176, 202.) The court may consider the credibility as well as materiality of the evidence in its determination whether introduction of the evidencewould render a different result reasonably probable. (Ibid.) If the court determines that the new evidence would render a different result reasonably probable, then it should order a new adjudication hearing, placing the parties in the same position as if no adjudication hearing had been had. (See Pen. Code,  1180.)

DISPOSITION

The order of the juvenile court denying the petition is reversed and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.

___________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

___________________________________

CORNELL, J.

___________________________________

GOMES, J.

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Analysis and review provided by La Mesa Property line Lawyers.

^[1]There was testimony that the puppy belonging to the family died shortly after the rat poison incident. One of Brendas sons said he sometimes fed the dog table scraps but did not recall feeding the dog tacos. Also this son and another son said the dog was sick before the taco incident. A veterinarian was supplied the body of the dog and saw no evidence of rat poison. It was the veterinarians opinion that the puppy died of parvovirus. The court did not rely on evidence regarding the dog in reaching its decision.

^[2]All future code references are to the Welfare and Institutions Code unless otherwise noted.