BERRY V. SUPERIOR COURT - THE ISSUE OF SECOND DEGREE MURDER REQUIRES CONDUCT WITH HIGH PROBABILITY1

Episode Transcript

Speaker 1 (00:10):
Adam Young nineteen fifty five. Okay, my three word pimp
and grand week for a cop. I believe it was
called my camera one.

Speaker 2 (00:22):
Welcome back, everybody, they're gonna be looking at the case
of Barry versus Superior Court in California Court of Appeals
nineteen eighty nine. The rule of laws, second degree murdered
for an unintentional killing requires conduct with a high probability
of death and either knowledge of the risks of the
conduct or that the conduct is illegal. The facts, Michael
Berry owned a pitbull named Willie. Billy purchased Willie as
a fighting dog. The breeder told will Barry that Willie

(00:44):
was a fighting dog and had good nameness, good gameness,
and wind in an exceptionally hard bite. Michael Berry lived
next to the Solo family, who had four young children.
Berry and the Soto family shared a driveway. Barry Warren
the Soto family that the dog was behind a fence,
but it was a killer dog. However, the fence was
not a full enclosure and anyone could get to the

(01:05):
area on the side of Barry's home where Willie was chained.
Through that area. Barry was growing almost two hundred and
fifty marijuana plants. James Soto two and a half years
old when his mother went aside from it and left
James playing on the patio. James wandered into the Barry's yard.
The family then discovered Willie attacking James, and James died
from his injuries. Before this attack, Willie had never attacked

(01:28):
the person. The State of California charged Berry with involuntary
manslaughter and other crimes. The prosecution also considered charging Barry
with second degree murder after the preliminary hearing. During the
preliminary hearing, the prosecution presented testimony from an animal control
officer qualified as an expert on fighting dogs. The officer
testified the pitbull dogs had been selectively bred to be

(01:49):
aggressive and can attack without warning. The trial court determined
that probable cause existed to continue the criminal case, and
Barry filed a petition to review this finding. The issue
second degree murder for an unintentional killing require conduct with
the higher probability of death and either knowledge of the
risks of the conduct and the conduct is illegal. The
holding and reasoning by Jay Agliano said, Yes, second degree

(02:12):
murder for an unintentional killing requires conduct with a high
probability of death and either knowledge of the risks of
the conduct. These conditions result in an implied malice that
increases the punishment for the unintentional killing to second degree.
The conduct does not have to be acts of commission
rather than omission. For example, shooting into a crab, or
setting a lethal trap in an alley, or failing to

(02:32):
care for one's child could all constitute second degree murder.
In this case, Berry's possession of a fighting dog was illegal,
and Barry's use of the fighting dog to guard illegal
marijuana plants was also illegal. Also, keeping the fighting dog
in allocation that was accessible, especially with young children, is
conduct that is probable to result in death. The evidence
of the preliminary hearing also shows that Berry may have

(02:54):
been aware that this conduct could result in death. Burry
near the dangerousness of the dog, bread and condition of
all right, Barry kept the dog chained and guarding his
illegal marijuana plants. Remember this is forty years ago. Barry
also kept the dog in a location that was easily accessible.
Based on these facts, there's enough evidence to lead a
man of ordinary prudence to believe in conscience and conscientiously

(03:15):
entertain a strong suspicion of guilt, which is the standard
to move past the preliminary hearing. According to the trial
court's judge, judgment is affirmed. So again you see the
second degree murder here for an unintentional killing, requires conduct
with the high probability of death, and the judge ruled

(03:37):
it it was there was negligence involved, and we're leaving
that gait, leaving accessibility for even a two and a
half year old to be able to get to So
there you go, Barry versus Superior Court. Thanks for listening, everybody,