Berry v. Superior Court

Court of Appeal, Sixth District, 1989.

208 Cal.App.3d 783, 256 Cal.Rptr. 344

Dressler, pp. 266-271


Facts: Berry had a fighting pit bull chained to a fence near some marijuana plants.  The dog killed a toddler.  The defendant was charged with murder.  He sought to have the charge dismissed on the basis that the evidence presented fell short of “implied malice”.


Issue: Is the evidence in the case sufficient to justify a murder charge against the defendant?  In particular, does the evidence show that the defendant exhibited an extreme indifference to the value of human life?


Rule: “The test of implied malice…is actual appreciation of a high degree of risk that is objectively present.”  In California, the defendant must be shown to have had a knowledge of the “high degree of risk”, or in other words, they must be shown to be reckless, in order to be charged with murder as opposed to manslaughter.


Analysis: The court cites several facts which taken together it suggests are sufficient to show recklessness:


1.     The defendant kept a fighting dog and told others it was dangerous.

2.     The defendant lived near kids.

3.     The defendant kept the dog chained to a fence.


Conclusion: The court concludes that there is sufficient evidence that the defendant knew the dog could harm human beings.  The court allows the murder case to go to trial.


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