Penal Code § 399 PC – Failure to Control a Dangerous Dog or Animal

You can be criminally charged under Penal Code § 399 PC if

1. you own or keep a dangerous animal,
2. you fail to take steps to control the animal, and
3. someone is killed or seriously injured as a result.

The offense can be prosecuted as

• a misdemeanor or
• a felony, and is
• punishable by up to 3 years in jail.

The language of the code section states that:

399. (a) 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, kills 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 felony.

(b) 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.

(Ironically, under California Health and Safety Code 122335, unlawful tethering of a dog, it is a crime to tether a dog for a long period of time. This can put some pet owners in a bind and give them no choice but to let their dog run free.)

Penalties

Penalties depend on whether the victim suffers serious bodily injury or death.

If the victim suffers serious bodily injury, the offense is a California “wobbler” offense. A “wobbler” may be charged as either a felony or a misdemeanor at the prosecutor’s discretion. ^1 2

If the victim is killed, failing to control a dangerous animal must be charged as a felony.

As a misdemeanor, failure to control a dangerous animal can be punished by:

• Up to six (6) months in county jail; and/or
• A fine of up to one thousand dollars ($1,000).³

Penalties for a California felony failure to control a dangerous dog or other animal can include:

• Up to three (3) years in jail; and/or
• A fine of up to ten thousand dollars ($10,000).⁴

The defendant might also be charged with involuntary manslaughter, California Penal Code 192(b) PC.

Defenses

Common defenses to PC 399 charges (discussed in more detail below) include:

• The dog/animal was not yours.
• The animal was not dangerous.
• You didn’t know the animal was dangerous.
• You exercised ordinary care in restraining the animal.
• The victim ignored warnings about the animal.
• There was prosecutorial or police misconduct.

To help you better understand the crime of failure to control a dangerous dog/animal, our California criminal defense lawyers will discuss:

• 1. The legal definition of a “dangerous animal” in California
• 2. The “elements of the crime”
  • 2.1. What is “ordinary care”?
  • 2.2. What constitutes “serious bodily injury”?
• 3. Examples
  • 3.1. Example 1 (wild animal)
  • 3.2. Example 2 (dangerous domesticated animal)
  • 3.3. Example 3 (non-dangerous domesticated animal)
• 4. Penalties for failing to control a dangerous dog/animal
  • 4.1. If the victim is killed
  • 4.2. If the victim suffers “serious bodily injury”
• 5. Legal defenses to Penal Code 399 PC
• 6. Related criminal offenses
• 7. Can I be sued for failure to control a dangerous dog?

1. The legal definition of a “dangerous animal” in California

Under California law, an animal is considered “dangerous” if:

• It is a wild animal, or
• It is a domesticated animal that is individually vicious or prone to hurting people willfully.⁵

The difference between a wild and a domesticated animal

Unfortunately, California law does not specifically define “domesticated animal” or “wild animal.”

But animals that are always considered domesticated include:

• Commonly owned house pets such as dogs and cats, and
• Livestock such as horses and cows.⁶

And animals that California courts have ruled to be wild, or suggested are wild, include:

• Lions, tigers, leopards and other big cats;
• Chimpanzees;
• Wolves; and
• Human-eating sharks.⁷

2. The “elements of the crime”

For a defendant to be found guilty of failing to control a dangerous animal, all of the following “elements of the crime” must apply:

1. The defendant owned, or had custody or control of, a dangerous animal;
2. The defendant knew that the animal was dangerous;
3. The defendant willfully (that is, willingly or on purpose) allowed the animal to run free or else failed to use ordinary care in keeping the animal;
4. The animal killed or caused serious bodily injury to another person; and
5. The victim took all the reasonable precautions that an ordinary person would have taken in the same situation (unless the victim was under the age of 5, or was for any other reason incapable of taking reasonable precautions).⁸

2.1. What is “ordinary care”?

“Ordinary care” in keeping an animal means reasonable care to prevent reasonably foreseeable harm to someone else.

Someone fails to use ordinary care when he or she does something a reasonably careful person would not have done in the same situation.⁹

2.2. What constitutes “serious bodily injury”?

“Serious bodily injury” means a serious impairment of physical condition. This can include but is not limited to:

• Loss of consciousness;
• Concussion;
• Bone fracture;
• Protracted loss or impairment of function of any bodily member or organ;
• A wound requiring extensive suturing; and
• Serious disfigurement.¹⁰

It does not matter whether the injury is inflicted with a deadly weapon or not.

3. Examples

3.1. Example 1 (wild animal)

Luis keeps a chimpanzee as a pet. He has raised it since it was a baby. The chimp has never shown any signs of aggression toward humans.

One day while the mail carrier is delivering mail, the chimp runs out of the house and attacks him. The mail carrier ends up with severe lacerations and a broken arm.

Luis may be guilty of failing to control a dangerous animal even though his chimp never behaved viciously before. This is because chimpanzees are considered wild and under California law all wild animals are deemed “dangerous.”

3.2. Example 2 (dangerous domesticated animal)

Todd has a pet pit bull named Blue. Blue has attacked people and other dogs in the past, and local authorities have told Todd that he should keep Blue indoors or in a secure enclosure at all times.

One day Todd chains Blue up in his yard. Blue breaks free of his collar and runs into the yard of Todd’s 85-year-old neighbor Steve. Blue attacks Steve’s dog, and Steve hits Blue with a cane. Blue then bites Steve on the leg.

Todd is guilty of failing to control a dangerous animal. Given his knowledge of Blue’s vicious tendencies, leaving Blue chained outside was a failure to use ordinary care.

Also, Steve’s injuries count as “serious bodily injury” because of the long recovery time and potential for complications for someone of his age.¹¹

3.3. Example 3 (non-dangerous domesticated animal)

Jen keeps several horses. The fence around the horses’ corral is in bad condition, and they sometimes escape and wander around the rural neighborhood where she lives.

One night one of her horses gets loose and wanders onto the road. Ezra is driving on the road. His car hits the horse, and the collision kills him instantly.

Jen is not guilty of failing to a control a dangerous animal. Horses are domesticated animals. The fact that her horse had a tendency to wander, including onto streets where it could cause collisions, did not make it “dangerous.”

4. Penalties for failing to control a dangerous dog/animal

4.1. If the victim is killed

If the victim dies as a result of the defendant’s failure to control a dangerous animal, PC 399 is a felony.

Potential penalties for a felony conviction include:

• Felony (formal) probation;
• Sixteen (16) months, two (2) years or three (3) years county jail; and/or
• A fine of up to ten thousand dollars ($10,000).¹²

4.2. If the victim suffers “serious bodily injury”

If the victim of the animal attack suffers serious bodily injury but is not killed, then it becomes a “wobbler” offense.

A “wobbler” is a crime that may be charged as either a misdemeanor or a felony, as the prosecutor sees fit.¹³

Felony punishment

If charged as a felony, the potential punishment for failure to control a dangerous dog/animal is as set forth above.

Misdemeanor punishment

If charged as a misdemeanor, the potential penalties for failure to control an animal can include:

• Misdemeanor (summary) probation;
• Up to six (6) months in county jail; and/or
• A fine of up to one thousand dollars ($1,000).¹⁴

5. Legal defenses to Penal Code 399 PC

The best legal defense against Penal Code 399 depends on the facts of the specific case. But some common legal defenses to charges of failure to control a dangerous animal include:

You were not the animal’s owner or handler.

If the animal was not yours and was not under your control, you cannot be guilty of failing to control it.

The animal was not a wild animal.

In some cases, guilt may turn on whether an animal was wild or domesticated.

California law does not define “wild animal.” As a result, it may be possible to argue that your animal was not, in fact, wild. This forces the prosecutor to prove that you knew the animal was dangerous.

The animal was not dangerous.

In order for you to be guilty of failing to control a domesticated animal, the animal must have been dangerous.

The burden is on the prosecutor to establish the animal’s propensity for violence beyond a reasonable doubt. If the animal was not dangerous, you are not guilty of violating the section.

You didn’t know that your pet or livestock was dangerous.

If your animal was domesticated, you are not guilty unless you knew the individual animal was dangerous.

As Pomona criminal defense attorney Neil Shouse¹⁵ explains:

“Failure to control a dangerous dog or other domesticated animal is not a ‘strict liability’ offense. You are not guilty just because your pet or livestock killed or injured someone. The prosecutor needs to prove that you knew the individual animal was dangerous.”

You exercised ordinary care in restraining the animal.

Having a pet or livestock with dangerous tendencies is not, in and of itself, against the law. The law simply requires that you exercise reasonable care in keeping the animal restrained.

The victim ignored warnings about the animal.

People with dangerous animals have a duty to exercise care with how they restrain and handle their animals.

But it is a sad fact that some people do not heed warnings, particularly about dangerous dogs.

If the victim did not take reasonable precautions after being told that an animal was dangerous, the owner/handler should not be found guilty.

Note, however, that this defense does not apply if the victim:

• Was a child under 5 years of age, or
• Was otherwise unable to exercise reasonable precautions.¹⁶

There was prosecutorial or police misconduct.

Regardless of the charges, defendants have rights under the law. Your California criminal lawyer may be able to have evidence you excluded if:

• The evidence resulted from an illegal search and seizure;
• The peace officer coerced a confession;
• There was police misconduct, such as falsified evidence; or
• There was prosecutorial misconduct.

6. Related criminal offenses

Related offenses that are often charged along with failing to control a dangerous dog or another animal include:

• Animal abuse or cruelty, Penal Code 597 PC;
• Dogfighting, Penal Code 597.5 PC; and/or
• Involuntary manslaughter, Penal Code 192(b) PC.

7. Can I be sued for failure to control a dangerous dog?

Yes. California’s civil dog bite laws impose “strict liability” for dog bites in California. Unlike some other states (such as Nevada) there is no “one bite” rule for dog bites in California.

This means that the owner of a dog who bites someone is liable for that person’s injuries — even if the dog has never bitten before and the owner did nothing wrong.

Additionally, the law permits euthanasia of dogs that bite in California if:

• The dog has bitten a person on at least two separate occasions,or
• The dog was trained to fight, attack, or kill someone and it bites someone even once and causes substantial physical injury.

Additional Resources:

Los Angeles Department of Animal Care and Control

Animal Legal & Historical Center: California Dog Laws

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Legal References: