## Facts

- Michael Berry owned a pit bull (“Willy”) obtained from a breeder associated with fighting dogs and possessed materials suggesting dog-fighting use or training.
- Berry lived on the same lot as the Soto family, who had four young children; the families shared access areas, and the children could reach Berry’s yard.
- Berry cultivated a large number of marijuana plants on the property; access to the plants required passing near where the dog was kept.
- Willy was tethered in a side yard that lacked a complete enclosure and was readily accessible.
- Berry warned the Soto parents that the dog was dangerous, while also representing that the dog was “behind a fence” despite the incomplete barrier.
- A two-year-old child, James Soto, wandered into Berry’s yard; family members found Willy attacking him, and the child died from the injuries.
- Evidence did not show a prior human attack by Willy, but expert testimony described pit bulls as selectively bred for aggression and capable of attacking without warning.

## Issues

1. Whether the preliminary-hearing evidence supported probable cause to hold Berry to answer for second-degree murder on an implied-malice theory based on keeping a dangerous dog in accessible conditions.
2. Whether the evidence supported probable cause for Penal Code § 399 (negligent keeping of a mischievous animal that kills a human being), including that the animal was “mischievous” and kept without ordinary care.

## Decision

- The Court of Appeal denied Berry’s petition for writ of prohibition challenging the bindover.
- The court held the preliminary-hearing record permitted an inference of implied malice sufficient to proceed on second-degree murder.
- The court held the evidence was also sufficient to proceed on the Penal Code § 399 count.
- The court concluded that whether the circumstances created a high probability of death and whether Berry acted with conscious disregard for life were factual questions for the jury, not grounds for dismissal at the preliminary stage.

## Legal Principles

- Implied malice may be shown when a defendant knows conduct endangers life and nevertheless acts with conscious disregard for life, even if the killing is unintentional.
- Implied-malice liability is not limited to affirmative acts; a reckless failure to take required precautions, where a duty exists, can support the requisite mental state.
- At the preliminary hearing, the question is whether there is a rational basis to hold the defendant to answer (probable cause), not whether guilt has been proved beyond a reasonable doubt.
- Penal Code § 399 may be supported by evidence that the defendant knew or should have known an animal was dangerous under the circumstances and failed to exercise ordinary care in keeping it.

## Conclusion

The court allowed prosecution to proceed where evidence showed the owner knowingly kept a dangerous, fight-associated pit bull in an accessible area near small children with inadequate barriers, supporting probable cause for implied-malice murder and for negligent keeping of a mischievous animal causing death under Penal Code § 399.


Berry v. Superior Court, 208 Cal. App. 3d 783 (Ct. App. 1989)