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San Francisco prosecutors, contemplating whether to file criminal charges against the owners of two dogs in last month’s death of 33-year-old Diane Whipple, might want to keep an eye on a trial that began this week in the Mojave Desert town of Barstow, Calif. They might get some idea about what charges, if any, would work if they decide to prosecute Pacific Heights lawyers Robert Noel and Marjorie Knoller. On Tuesday, San Bernardino County prosecutors began picking 12 jurors in a case against James Chiavetta, charged with second-degree murder and implied malice in the death of Cash Craig Carson. Chiavetta was the caretaker of two dogs that mauled the 10-year-old boy last April in the Newberry Springs community 25 miles east of Barstow. The dogs’ owners — Michael Caldwell and Gilbert Garcia of Las Vegas — face the lesser felony of owning mischievous animals that caused a death. Their joint trial date has not been set. San Bernardino County Deputy District Attorney Steven Sinfield, who’s handling all three cases, said Tuesday that the owners — who could face up to three years in prison — don’t face murder charges because they were not at the scene of the crime and had delegated control over the dogs to Chiavetta. “At the time of the incident,” Sinfield said, “they weren’t in charge of the dogs, and Mr. Chiavetta was.” In addition, prosecutors purposely chose not to charge Caldwell and Garcia under year-old Penal Code Section 399.5, which calls for enhanced penalties in dog attacks. The statute, passed into law after a near-fatal attack on a Tehama County boy in 1998, lets prosecutors seek up to four years in prison and a $10,000 fine for owners of dogs that have been trained to “fight, attack or kill.” “We have no evidence that these dogs were trained to fight,” Sinfield said. “We can’t prove that.” He believes, though, that he can prove the murder charge against Chiavetta, even though the property manager was at his home on the multi-acre ranch and not at the dogs’ side during the attack. Chiavetta didn’t exercise proper care or control over the dogs, Sinfield said, because he let them run loose with an open gate despite signs warning about “guard dogs on duty.” Sinfield said he doesn’t have to prove Chiavetta had any intent to kill, only that he set in motion an act that was dangerous to human life and that the act was deliberately performed with knowledge of that danger. Sinfield said in court papers that Chiavetta — and by connection Caldwell and Garcia — were negligent in letting the dogs run free at the time because there was evidence that neighbors and delivery people were concerned that the dogs “were aggressive and would bite.” “[Chiavetta] was aware of the danger of the dogs and he did the act anyway,” Sinfield said. “I think we have sufficient evidence.” Chiavetta’s lawyer, Hesperia, Calif., sole practitioner Robert O’Connor, did not return telephone calls seeking comment. He is a well-known defense lawyer in the so-called High Desert, having last year represented a former convict in a high-profile “Three Strikes” drug possession case and a woman convicted of a hate-related vandalism. Ronald Lewis, a Woodland Hills, Calif., sole practitioner who represents Caldwell, one of the dogs’ owners, said Tuesday that he believes prosecutors have overreacted by filing charges against the caretaker and owners. “It was a horrible accident,” he said. “Nobody intended for this to happen.” Lewis said that when his client’s case goes to trial, he plans to present evidence showing that Carson had trespassed onto the dogs’ territory. He said he also might challenge whether the boy could have lived had he gotten immediate and better treatment. Troy Padgett, an associate at Victorville’s Ponce, Ritter & Shoup who represents co-owner Garcia, didn’t return telephone calls seeking comment. Carson and a 10-year-old friend, Daniel Gonzalez, were attacked on April 29 by two dogs near Carson’s rural home. Gonzalez, the main prosecution witness, escaped, but the dogs — identified by Sinfield as Bear, a pit bull mix, and Louise, a springer spaniel mix — severely injured Carson, who died later at Barstow Community Hospital. Though Sinfield says he believes the dogs are dangerous, defense lawyer Lewis disputes that. Even though Bear killed his sire in an earlier dog fight, Lewis said, neither Bear nor Louise have any proven history of violence against humans. “The dogs were pets who had lived there for nine years,” he said. He also disputes prosecution statements that Chiavetta himself was scared of the dogs when he assumed their care. “As anybody who first meets a dog, he was afraid,” Lewis said. “But that didn’t last long. After he got acclimated, he realized they were great dogs.” Unlike in San Francisco, where one dog, Bane, was put to death and the other, Hera, could face the same fate, Lewis and Sinfield banded together to keep Bear and Louise alive, although in custody. “I told the judge this is evidence,” Lewis said. “Why would you want to destroy that? It’s like taking the murder weapon and destroying it.” Sinfield agreed. “It might be nice for the jurors to see them,” he said. San Francisco prosecutors, accused by some of taking too long to decide whether to file charges for Whipple’s Jan. 26 death, could take some solace in the fact that San Bernardino County prosecutors didn’t rush to judgment either. While Carson died on April 29, charges against the three defendants weren’t filed until June 15. Sinfield said that was because of intense investigations to determine how much knowledge all the participants had about the dogs’ propensities and to find out whether the dogs had been violent before. There was also lengthy discussion about what charges could actually be filed. “That all took some time,” Sinfield said. Sinfield said he hopes to have the Chiavetta case — presided over by San Bernardino County Superior Court Judge Thomas Glasser — completed by the last week of March. He also said he doesn’t believe that publicity surrounding the Whipple death in San Francisco will help or hurt his case, and he vowed to prosecute the owners even if Chiavetta is found not guilty. “The charges are totally different,” he said. Lewis said that his client, Caldwell, is devastated by Carson’s death, and that as part of his defense strategy, he will not attack the deceased, as Noel and Knoller have done in the San Francisco case. “The worst thing they did,” he said, “was dump on the victim.” Even so, Lewis made it clear in court papers last year that when his case goes to trial, he will argue that Carson blatantly ignored warning signs about the dogs and trespassed on private property. “With all due respect to the young victim of this tragic accident,” Lewis wrote, “he did not take ‘all the precautions which the circumstances permitted, or which a reasonable person would ordinarily take in the same situation.’ “

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