Is pit bulls' owner guilty in tot's fatal mauling? Judge to decide if killing of 2-year-old was a crime

Steven Hayashi, in the jail visiting room in 2010, has a different view of pit bulls' aggressiveness now after his dogs fatally mauled his 2-year-old step-grandson at their home in Concord. Steven Hayashi, in the jail visiting room in 2010, has a different view of pit bulls' aggressiveness now after his dogs fatally mauled his 2-year-old step-grandson at their home in Concord. Photo: Michael Macor, The Chronicle Photo: Michael Macor, The Chronicle Image 1 of / 1 Caption Close Is pit bulls' owner guilty in tot's fatal mauling? 1 / 1 Back to Gallery

Three years ago a Concord boy wandered alone into his garage, where he was set upon by three pit bulls owned by his step-grandfather. Before an adult could intervene, 2-year-old Jacob Bisbee was fatally mauled, with severe wounds to his face and a nearly severed left arm.

The question now facing a Contra Costa County judge is whether the grief that followed the dog attack was enough - or whether Jacob's death, though tragic, was also a crime.

The trial of the step-grandfather, 55-year-old Steven Hayashi, began last week in Martinez in front of Judge John Kennedy after Hayashi waived his right to a jury. He faces charges of involuntary manslaughter and child endangerment that could send him to prison for up to 10 years.

The case offers a window into the legal challenges that emerge when a pet dog kills a human. In a series of Bay Area cases in recent years, there has typically been no evidence that dog owners intended to harm the victims. But whether they did enough to prevent the attack is another story.

To build a case, prosecutors often must determine whether the dogs in question had previously attacked other animals or humans, generating complaints to animal control agencies or veterinarians or prompting lawsuits.

Explore all avenues

"Just asking the owner, most people would say that their dog is not aggressive, but that's not the end of the inquiry. You have to explore all the other avenues," said legal analyst Steve Clark, a former Santa Clara County prosecutor who is now a defense attorney.

"You'd want to ask other people, like neighbors and other family members, whether there's been prior instances of aggression," he said.

The prosecutor in the Concord case, Mary Knox, said Hayashi repeatedly ignored pleas by his wife and Jacob's father to remove his five pit bulls from the home the extended family shared on Trailcreek Court. They were worried about the safety of Jacob as well as his brother, who was 2 years older.

On the morning of July 22, 2010, Hayashi was designated as the children's caretaker - a standard practice - while his wife slept after a night shift. But Hayashi went out to play tennis with his son, leaving Jacob and his brother unsupervised, Knox said.

She said Hayashi did not lock the door to the garage, telling police later that while the boys could open the door, they usually stayed in their room. Jacob wandered in, though, finding pit bulls Sadie, Kiwi and Jake. Hayashi's two other pit bulls were in the backyard.

In a 911 call that was played for Kennedy last week, the anguished screams of Hayashi's wife are heard in the background as she discovers Jacob. Asked if the boy was breathing, Leticia Hayashi said no.

In a jailhouse interview with The Chronicle a day later, Steven Hayashi said he didn't believe he was "totally responsible" for Jacob's death, but acknowledged that he had ignored warning signs, including when one of his dogs killed his Chihuahua.

Before the tragedy, Hayashi said he had always believed that pit bull owners - and not the dogs themselves - were the problem.

'I used to think that way'

"Well, I used to think that way," he said. "That's what got me into this mess, just thinking that they're regular dogs. I can understand a dog biting or nipping, but to maul somebody until he's dead?"

Investigators in the Hayashi case considered a variety of charges against him, including second-degree murder. The government would have had to show "implied malice" - that the defendant engaged in an intentional, unlawful act done with conscious disregard for the risk to human life.

At a preliminary hearing in 2011, Judge Clare Maier said there was no evidence to support a murder charge because there was "scant evidence" that Hayashi's dogs had previously attacked humans.

Prosecutors cited the 2001 fatal mauling in San Francisco of Diane Whipple, which led to the second-degree murder conviction of a neighbor who was keeping the two dogs involved in the attack, Marjorie Knoller. But Maier noted that Knoller's dogs had been involved in 30 known attacks on animals and humans before the fatal one.

The judge said Hayashi could be tried for involuntary manslaughter, defined as being responsible for a death but without intent.

Hayashi is seeking acquittal. When Knox opened the trial last week by showing photos taken at a hospital of Jacob's disfigured body, his attorney, David Cohen, repeatedly objected.

"The D.A.'s case is all about the terrible photos and a terrible tragedy and that somebody's got to pay," Cohen said outside court. "This family and my client have suffered tremendously. He certainly didn't intend for this to happen."

One central challenge in dog-mauling prosecutions is that California has no special statutes for fatal dog maulings.

"We're missing any kind of a law that has to do with 'murder by dog,' or 'manslaughter by dog,' " said Kenneth Phillips, a Los Angeles attorney whose practice is dedicated to representing victims of dog maulings.

Prosecutors' choice

Phillips said prosecutors often choose not to file charges against people whose dogs kill members of their own family. That was the case in Alameda County, where prosecutors haven't filed charges against a Union City family, which includes a San Mateo police officer, whose dog bit and killed a 6-year-old relative.

When a family member goes on trial in such a case, verdicts are difficult to predict.

In San Francisco, authorities abandoned a child-endangerment case against Maureen Faibish after jurors deadlocked in the 2005 mauling death of her 12-year-old son, Nicholas. The jurors said prosecutors had failed to show that Faibish knew there was a high likelihood that her son would be seriously injured or killed if she left him with the dogs.