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One of the two San Francisco dog owners convicted in an attention-grabbing trial over the 2001 mauling death of Diane Whipple may be headed back to prison. In an exhaustive opinion Thursday, a 1st District Court of Appeal panel concluded that trial Judge James Warren misread the law when he tossed out Marjorie Knoller’s jury verdict for second-degree murder nearly three years ago. A split panel is sending that part of the case back to the San Francisco Superior Court judge, telling him to reconsider — and the justices are leaving little doubt as to how they think Warren should rule this time. Taking aim at his decision to grant a new trial on the murder count, Justice James Lambden wrote for the 2-1 majority, “The record indicates that the trial court would not have granted the motion had it applied the proper legal standard for implied malice.” Justice Ignazio Ruvolo joined him in the majority opinion, which also turned down appeals from Knoller and her husband and law partner, Robert Noel, of their involuntary manslaughter convictions. Justice Paul Haerle, who dissented in part, agreed that Warren fouled up — he just disagreed about how. Lambden and Ruvolo agreed with Deputy Attorney General Amy Haddix that the trial judge didn’t use the legally correct definition of implied malice. In explaining his decision at the trial court, Warren said the couple clearly should have known they had dangerous dogs “that were likely going to do something bad.” But to be convicted of second-degree murder, he added, a person has to know their conduct has a high probability of killing someone. And he couldn’t conclude Knoller knew that, he said, adding that the one and only time he believed her on the stand was when she broke down and said she “had no idea that this dog could do what he did.” Warren asked the wrong question, Lambden wrote. But “even in the face of what appears to be ample evidence to support the jury’s verdict � we feel constrained to remand to the trial court.” The question was not whether Knoller knew her conduct was likely to result in someone’s death, Lambden wrote — knowing that it risked causing serious bodily injury should have been enough. The 33-year-old Whipple was attacked in the hallway of her Pacific Heights apartment building by her neighbors’ two Presa Canario dogs. Prosecutors alleged that Knoller and Noel had ties, through a state prisoner they had adopted, to an attack-dog breeding operation called “Dog-O-War.” “The prosecution only had to prove that Knoller knew that, by taking Bane outside of her apartment without a muzzle, she was endangering the life of another. The key to the issue is her conscious disregard for the life of another person.” Warren’s logic would bar second-degree murder convictions in many vehicular murder cases against drunken drivers, Lambden added. The majority also criticized Warren for saying that it was “troubling” Noel had not also been charged with second-degree murder. “Comparative culpability is not a basis for a new trial,” Lambden wrote. But he and Ruvolo jumped to Warren’s defense when Justice Haerle argued in his dissent that the superior court judge violated Knoller’s constitutional rights when he admonished her lawyer. When defense attorney Nedra Ruiz objected during closing arguments that the prosecutor was misstating the evidence, Warren told her not to interrupt again “or you will be out of the courtroom.” When she did anyway, Warren told the jurors they should judge the evidence themselves, and that it was improper for Ruiz to object to her opponent’s recollection of the facts. To Ruiz, he added, “Please take your seat now � or the next objection will be made from the holding cell behind you.” At a hearing three months later, the judge said he regretted not inserting the word “improper” before “objection” at the time. Lambden and Ruvolo concluded that a reasonable attorney would have interpreted Warren’s order as prohibiting only improper objections. Warren has authority to control his courtroom, Lambden wrote, adding in a footnote, “To the extent the court’s ruling was ambiguous, Ruiz had a duty to seek clarification.” (Another footnote adds that Knoller’s counsel’s behavior throughout trial had included “writhing on the floor,” improperly indicating to the jury that the victim was a lesbian and disobeying a gag order in a TV interview.) Haerle said Warren’s “belated attempted modification” wasn’t good enough. “When a defendant is denied the assistance of counsel at such a crucial point, it is simply wrong to engage in run-of-the-mill, harmless error analyses.” Though he readily conceded the odds were long that the jury would have come back with a different verdict, he said Warren’s actions should not only not lead to a reinstatement of her second-degree murder conviction — they should lead to a retrial on involuntary manslaughter. Both Knoller and Noel were released from prison after they served less than two years of their four-year sentences and are now on parole. Second-degree murder carries a 15-years-to-life sentence. Dennis Riordan, Knoller’s attorney, said she will remain free until the case is finally resolved. Riordan said he would ask the 1st District to reconsider, and if it doesn’t, appeal to the California Supreme Court. “The majority in this case did not apply existing law.” Noel’s appellate lawyer, Clifford Gardner, did not return a call seeking comment Thursday afternoon. News of the 1st District opinion reached both of the original prosecutors during a busy day covering the Michael Jackson trial in their current jobs as legal analysts. “Sometimes justice takes its time,” said Kimberly Guilfoyle Newsom, now an anchor for Court TV and a legal analyst for ABC’s “Good Morning America.” She plans to be in court when Warren reconsiders the new trial motion, she said. “Everyone told us we were wrong for prosecuting this as a murder case, that we would lose, that it was political,” said James Hammer, now a legal analyst with KTVU and Fox News Channel. He credited Haddix, who argued the appellate case but was on vacation Thursday, saying, “She’s hardworking and bright, and she had faith in this thing.”Hammer said he spoke to Sharon Smith — Whipple’s domestic partner at the time of her death — on Thursday. Though Hammer left the local prosecutor’s office shortly after District Attorney Kamala Harris took office last year, he said he plans to ask Harris to reappoint him just to handle the remanded hearing before Judge Warren. “I want closure,” he said. The full opinion is People v. Noel, 05 C.D.O.S. 3738. The Associated Press contributed to this report.

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