"I didn’t want to go over there in the first place,” David Herbert said. “Before I went over there I spoke with my HOA and contacted law enforcement asking them to help me with the noise situation over there.” But they didn’t do anything about it.
“So I went over there. I knocked on her door, and I asked her, I couldn’t have been any nicer than I was, I asked her, you know, ‘Please, can you please turn the TV down? Can you please stop making all that noise?’”
Mrs. Griffith said it was noise from her son’s room, from his television, that was bothering her neighbor Herbert.
“The reason I was so sensitive about the noise at that point was, I was studying something in my home to take a licensing exam,” Herbert explained. “So that’s why I really needed to have that peace at the time. So I’m not like a grinch sitting there, you know, ‘I need to have complete silence.’”
Mrs. Griffith and her family moved into their Oceanside home in October 2011. The house on Carino Way stands around the corner from Mission San Luis Rey. Eight months later, on June 1, 2012, Herbert moved into the house next door.
The day after he spoke to his new neighbor about the television noise, Herbert sent an email to the homeowners association: “Okay, the day after I spoke to them, the window is still open and the noise is still pouring out.” He had lived in the community for only two months, but Herbert already had become a frequent complainer to the homeowners association. “I initially sent you a laundry list of violations, none of which have been addressed,” he wrote. “I’m absolutely requesting a hearing before the board of directors. I intend to fight this via every legal means possible.” And he signed off with, “You will be hearing from me soon again.”
The next day, Mrs. Griffith found all four tires flattened on her red 1998 Ford Explorer. She had parked her car overnight on the street, on the other side of Herbert’s house, in front of the community pool. Mrs. Griffith’s son told her it looked as if someone had poked a hole in each tire.
“As far as Griffith, as far as she’s concerned, I believe she got what she deserved.” Herbert was speaking plainly by the end of his criminal trial in 2018. He told the jury that if you behave with complete disregard for those around you, and you get your tires slashed, “then I’m sorry, but you’re not getting any sympathy from me, you’re getting none whatsoever.”
In August of 2018, six years after his experience with his first neighbor on Carino Way, Herbert was in court acting as his own attorney, fighting charges of vandalism and felony animal abuse. “When I cross-examined Griffith and I used the word ‘scumbag,' I meant what I said. I don’t take it back. I stand behind it one hundred percent.”
During his closing argument, at the end of a two-week trial, Herbert spoke directly to the jury. “And when I said that the other neighbors that lived there, I called them ‘scumbags’ as well, I stand behind it a hundred percent. I don’t take it back.”
The first family, the Griffith family, did not get the worst of Herbert’s alleged terrorization. A succession of neighbors who rented the home next to Herbert suffered terribly bad luck.
Mrs. Morales and her dogs
“Maria Morales, she was also a scumbag,” Herbert said. “She was the biggest scumbag of all.” It was in the year 2016, he said, “when the first family moved in with the dogs.”
“So I was still living there all the way up to 2016 when Morales and her husband and her family moved in there. I was there. And they moved in with their dogs.”
Herbert said Mrs. Morales was a nuisance. “She was loud. She used the animals to continue her obnoxious behavior. She was told by police officers to keep the dogs inside, she was told by myself to stop making noise. And see how things turned out. She ignored both of those warnings and continued her obnoxious behavior.”
Herbert wanted everyone to know his frank opinion. “She wasn’t a good neighbor. And that may sound like I’m giving you a reason to believe that I attacked her, but she wasn’t a good neighbor. And that’s the bottom line. She was noisy and the animals were noisy. And in my opinion, that’s why they were attacked.
“And it wasn’t just the dogs that were making noise; she was actually worse than the dogs, if you can believe that. And I can’t sit here and make the same noises that she was making. Otherwise, I think everyone would get up and leave the room, it was that bad.”
A prosecutor helpfully prompted Herbert, “How bad was it?”
Herbert declared,“If it was on a scale of one to a million, it was ten million. It was that bad. If you were there, you would understand. But it’s that bad, trust me, it’s that bad. She was yelling over there.”
The prosecutor asked, “Who was she yelling at?”
Herbert answered, “I don’t know; the dogs, her son, I don’t know.”
Herbert wanted the jury to know: “I don’t have anything against any animals. I don’t have anything against cats or dogs or anything.” He insisted, “I have no quarrel with any animal at all.” He just expects animal owners to be considerate. “You have a responsibility to be considerate, you should be considerate of those around you, and that’s my view.
“And the way the homes are set up over there, the homes are really close.” The jury was shown photos of the houses. “So you have to be considerate of the people around you.” He would not waiver, “That’s just how I feel, and I’m standing behind it; if I get crucified for it, I do.”
Mrs. Morales’s flared eye makeup and waterfall of beautiful black hair made her a striking presence in the witness box. She testified over two days during the trial. She said her family moved into the home on Carino Way in late November, after Thanksgiving in 2016. It was she and her husband, three children, and two dogs.
Mrs. Morales said the family got the two huskies when they were small puppies. “The boy dog is Cocuyo and the female Estrella.”
The dogs were littermates, brother and sister. Cocuyo is Spanish for “firefly” or lightning bug and Estrella means “star.” When the family moved, the dogs were over one year old. She said her children played with the dogs. “To me they are not dogs,” she said, “they are like my children.”
Mrs. Morales sniffed and dabbed her eyes with tissues when she remembered all the bad things that happened during the six months they lived in that home.
She recalled there was one morning in December, after the family went out for breakfast, when they returned home and their dogs did not greet them. The dogs acted so strangely, she suspected that someone must have drugged them with marijuana, and she took them to a vet. The dogs seemed to recover from the experience.
In January, February, March, and April of 2017, they found the tires flattened on her car and on her husband’s work trucks. This happened so many times, she couldn’t even guess exactly how many. Eventually, Mrs. Morales started reporting these incidents to Oceanside police.
It was February 8, 2017, when one of her dogs went missing. After she took her children to school, Mrs. Morales returned home and found only the female dog, Estrella. The dogs had been left in the yard that morning. About noon that day, her husband got a phone call from someone at nearby Camp Pendleton. Their dog Cocuyo was mysteriously found on the military base, and because both her dogs are micro-chipped, the owner was identified. Mrs. Morales said her husband was able to retrieve Cocuyo from the Animal Control person on the Marine base after he finished his day’s work.
When Herbert cross-examined Mrs. Morales, he seemed to sneer, “But you didn’t even report that to police? Even though ‘your dogs were like your children?’”
When it was Herbert’s turn to present his evidence, he suggested that Cocuyo could have gotten onto Camp Pendleton by going under a fence, before somewhat bizarrely implicating himself. “But again, I don’t think that’s going to get through here, because again, the DNA was in my car so obviously I took it there.”
Investigators found Cocuyo’s DNA in dog-nose-smudges they observed on the inside of Herbert’s car window. But Herbert pointed out to the jury, “Even though I wasn’t seen going through that back gate where they scan everyone’s IDs. If you check the computer system, I never went on Pendleton because my ID wasn’t scanned. But again, that’s not enough, so why even bother to show you guys anything?”
Herbert made a half-hearted attempt to find a map on his computer, which he intended to present. “Because I see by the look on your faces that you already have your mind made up.”
Police eventually seized Herbert’s car and examined it for evidence. Besides DNA from Cocuyo’s nose smudges, they found blood and DNA from a different dog.
Several times during trial, Herbert seemed to suggest that dogs wandered into his garage, and then into his car. “Now, I told you that my garage door on the side of my home was always open. The dog got in there, got into my car and left its DNA there. Again, it’s not my responsibility to keep people’s pets out of my property, it’s their responsibility to keep it onto theirs.”
Eventually, Herbert did admit that he took that one dog away, to Camp Pendleton.
Mrs. Morales tearfully testified about the harm inflicted on her dogs, two weeks after they got Cocuyo back from Camp Pendleton. She said it was the morning of February 24, 2017, when, “I went to drop off my children at school, then went to the store to buy something for the dogs.”
She had left her dogs outside that day, but when she got home and opened the door to the kitchen, she found both dogs inside. “They were crying, like someone was hitting them.” She remembered it was “like a desperate sound.” The dogs looked wet and she touched one wet place. “My hand started burning and I ran to wash my hand.” She tried to describe it: “It was warm, yes, it would burn you.” She took her dogs to the vet.
Mrs. Morales said that after that, her dogs were no longer trusting. They didn’t want to go outside anymore. And she did not want to leave them outside, because she knew someone was trying to hurt them.
The whole family felt tormented. “Because we are a family that never had any problems before we moved to that house.” She now made a habit of calling the police after each new incident.
On April 10, Maria Morales said she was driving to pick up her kids and something exploded and she almost struck an oncoming vehicle; her littlest son was in the car and started crying. She called 911 and said someone was trying to kill her. “We couldn’t understand how some person had dared to flatten my tires again when we had a camera pointed at my vehicle.”
They had informed the landlord of their troubles after the dog-burning incident and were quickly provided surveillance cameras. One camera was pointed at their driveway, where they parked. When she checked that camera, Mrs. Morales said there was nothing recorded from that morning, nor the previous night. “I mentioned to police that the videos were not there, so I told the police that someone had come in and erased them.”
She knew there should be footage of the person who did it; she looked, “and it wasn’t there.” She believed someone came into her house and erased it. “Yes, of course, obviously.”
“The camera is there, facing the driveway, someone flattened my tires, of course the camera would record that, and it did.”
She found one small tear in one screen of one window. And she realized the kitchen window was opened slightly one day, when she believed she had left it closed. But when police walked around and inspected, they declared “no signs of forced entry.”
Two weeks after that incident, on April 28, 2017, Mrs. Morales dropped off her older kids at school, ran an errand, and then returned home about 10 am. She had left both dogs inside the house. Normally, her dogs howled a greeting to her, “but that day they did not say anything.” She found Cocuyo was wet again, and he was so weak he could barely hold up his head. Liquid was coming out of his mouth. She went looking for Estrella. “When I went up the stairs, I saw she was coming to meet me and I saw she was missing an eye. I saw a lot of blood on the stairs and you could see a lot of blood right here,” Mrs. Morales put her hand to her face, while she was in the witness box. She grabbed her smallest child, “I just saw the blood and I took off running with my son.” She feared the attacker was still inside her house.“I called 911, yes.”
Both Oceanside police and the San Diego Humane Society came to her home.
The Humane Society took her dogs and cared for them. The Morales family abandoned their rented home the same day. Mrs. Morales knew they were not safe. “My children are traumatized. The one who is four years old, he is traumatized, if you ask him, he will tell you exactly what he saw.”
It took about two weeks for her dogs to become strong enough to return to the family. Estrella’s damaged eye was removed. Mrs. Morales tearfully told the jury, “Somebody wanted to hurt them. Somebody wanted us out of there. We don’t understand why.”
When Herbert finally got his chance to cross-examine Maria Morales, he began with: “I guess that everyone has a sob story.”
Herbert demanded that she should “make the same noises that you were making in that yard all day!”
The prosecutor objected. The judge directed Herbert to move on.
The camera in the pool area
Mrs. Morales’ husband found the tires on his Dodge Durango deflated in March 2017. He had parked his vehicle in front of the community pool, on the other side of Herbert’s property. The HOA had recently installed cameras there; they said homeless people were coming over the fence and using the facilities.
Oceanside police officer Tim Pruitt reviewed video from one pool camera and testified about what he saw. At 10:30 am the morning of March 23, the camera recorded a man walking into view, coming from the direction of Herbert’s house. “He was tall and skinny, over 6 foot,” officer Pruitt said. The tall man crouched down next to the Durango. He stooped over at both tires on one side of the vehicle.
When Herbert cross-examined this policeman, he demanded: “Did you see me stick anything in the tire?”
Officer Pruitt carefully answered, “I can’t definitively say it was you that came from that area.”
Herbert seemed to sneer when he said, “I am telling you it is me in the video, so we can stop dancing around that issue.”
But Herbert did want to argue the fine points of deflating a tire. “If I told you I put something in there and it didn’t deflate, would you believe me?” The cop seemed confused by the question. “If I showed you a video of me sticking something into a tire and it stays perfectly inflated, would that surprise you?”
Officer Pruitt answered, “I don’t know.”
Herbert also posed this question, “If someone sticks something into a tire and someone else pulls it out, who deflated the tire?” During this back-and-forth, one juror was seen looking at her fellow jurors and shaking her head.
At different times during his trial, Herbert made statements that seemed contradictory, especially regarding the tire-deflating-accusations. Once he told the jury that “in the video I wan’t slashing a tire, I was looking.” Another time he said that when the Durango was parked near his home,“I saw something there, and my dumb ass went over there and pulled it out. So if you want to punish me for that, then knock yourselves out.”
Herbert created a video demonstration, which he showed to the jury. In the video he stuck an ice pick into a tire and demonstrated that the tire did not deflate until he removed the ice pick. During his closing argument, at the end of his trial, Herbert told the jury, “I already said that something was in the tire; when something is in there, it wouldn’t necessarily deflate.”
And he offered into evidence a large ice pick.
What happened to LaLa
After the Morales family abandoned their rented home, another family moved in a month later on May 28, 2017. That family had two dogs. They lasted exactly two days.
The morning of May 30, 2017, the surveillance camera in the pool area showed Herbert backing his car out of his driveway. The face of a small, brown dog can be seen looking out of the rear side window of his car. The little brown dog owned by the new neighbors — her name was Lala — has never been seen again.
Herbert explained to the jury, “The brown dog that was in my car, he was in my garage.” He said the neighbors’ dogs commonly got into his yard because their shared fence was faulty. He did not want the dogs in his backyard, so he left his side gate open for them to get out onto the street. Herbert said the little brown dog got into his garage because he left the side door to his garage open.“I tried to pick him up, but he wouldn’t let me pick him up.” He said the dog showed its teeth. Herbert said the dog “put itself” into his car.
He did admit, “You saw a video of me driving and the dog looking out of the window. The dog was in the car. So I had to leave that morning. So you know, I figured I was going to take the dog, there is a Humane Society shelter about five miles from where I live. I’m not saying that my intentions were noble, but I didn’t want it there, I didn’t want it in my yard. So I decided to take it over there. And so I got it in the car, and I decided to take it over there.”
Herbert said on the way, he pulled into a parking lot and pulled a latch that popped open the back hatch of his car. But when he walked back, “The dog had already gotten out of the car.” He never saw any blood on the inside of the hatch, because that hatch was raised up. He claimed that when the dog was running away from him he saw no blood on the dog, “Because the dog’s back was turned to me when it got out of the car.”
He showed a map of the grounds around Mission San Luis Rey to the jury; he described it as a park area, and said that was where the dog disappeared.
He said he looked for the dog, “I think I made an honest effort. I was gone for a whole hour that morning. I was looking for a whole hour. I mean, I don’t know what more you want from me, but I did go look. I just couldn’t find it.”
He did admit, “I knew that when I took that dog to the shelter, they were just going to bring it back anyway. So if you want honesty, well, I viewed it as a blessing (that the dog ran away). I didn’t want it to come back.”
Herbert said at one point, “And I guess someone could argue I put the dog in the car, took it somewhere, and then beat it to death. But then I would have to put it back in the car.”
When prosecutor Teresa Pham cross-examined Herbert, she asked, “How did LaLa get into your car?” He replied, “I put her there.”
The prosecutor sought further clarity. “So your trunk to your car was open then, right?”
Pham: “And then you took LaLa and put LaLa into the trunk area of your car?”
Herbert: “I did.”
And then he closed his trunk, and got in his car, and drove away.
Pham: “And that’s what we see in that surveillance footage, is that correct?” Herbert: “Yes.”
The prosecutor asked him: if you were scared that you were going to get bit or whatever, then why did you put the dog in the car? He explained, “Well, I was wearing leather gloves, and I picked the dog up so I wasn’t scared it would bite me.”
Herbert said he had two lightweight plastic bins, which he got from the post office, in the back of his car. “There were two of those things, like I said when I testified,” Herbert explained, “I told you that I brought two of them in there because I was going to put one on top of the other and tie them both together and put the dog inside.”
Blood and DNA found
Investigators found blood inside Herbert’s car, on the inside of the back hatch. It was DNA matched to the missing dog, LaLa. She has not been seen since the day she was captured on video in Herbert’s car.
Herbert claimed that the dog’s blood must have gotten in his car because trash he had in the back of his car, used printer parts, must have fallen on Lala. “You probably heard the lady in here talking about how I drive fast all the time,” Herbert said. “I kind of stomped on my gas, and everything that was on the one side of the car came over to the other side of the car, and whether it wounded him or not I don’t know.”
Investigators found a baseball bat in Herbert’s home which had a drop of Lala’s blood on it.
Herbert stated, “I did not hit the dog with a bat, I swear.” He said to the jury, “I’ll look you in the eye and tell you, I did not hit the dog with a bat.” He made this declaration more than ten times during his trial.
How much antifreeze will kill a dog?
The last chance that attorneys get to speak to a jury is during their closing arguments. While Herbert was giving his closing argument, he leafed through a list of Internet searches that investigators had found on his computer; the prosecutor showed these to the jury. Herbert leaned his head on one hand, while seated at his defense table, and he leafed through a notebook of evidence. He almost seemed to mumble to himself, “Some searches here about a crowbar, a crowbar, a crowbar, a crowbar, and how to break into a house.” And, “Best bar to pry open a window. Best bar to pry open a house….”
He searched “hydrofluoric acid.” He searched “ethylene glycol.”
“How to get a dog to drink antifreeze,” and “How much antifreeze will kill a dog?”
“Why do cats and dogs drink antifreeze and how does it kill them?”
Some final comments from Herbert to jury
Before he concluded his ill-advised self-defense, Herbert gave the jury a few more tidbits: “I know I’m not trying to insult anyone’s intelligence. I know everyone here is smart.
“I don’t know how to sit here and charm you or get you to like me. I’m not someone that’s going to charm anybody. I don’t try to be that type of person.
“I may have seemed confrontational while I was here, but I’m really not like this all the time. I’m really a quiet person. I would rather not open my mouth if I don’t have to, to be honest. But I don’t like to say negative things about anyone.
“If I’m going to prison, then I might as well just speak my mind while I’m at it. No sense going to jail with all this crap on my chest.
“And I’m done showing exhibits. I’m not trying to prove anything to anyone. If you believe me, you believe me, if you don’t, you don’t. I really don’t care anymore.
“So again, I stand behind my words. And as long as I know in my heart that I’m a good person, I’ve never used anyone. If anyone asks me for anything, I give it to them. So long as I know in my heart I’m a good person, I really don’t care what you people think about me.”
Judge Carlos Armour
In legal terminology, defendant Herbert was acting in propia persona. That is, he was acting as his own attorney. And so Herbert helped select his own jury of seven men and five women. This took about one day of his two-week trial.
San Diego Superior court judge Carlos Armour tried to keep order. Sometimes it happened that while Herbert was questioning a witness, he continued even after the prosecutor made an objection. At one point judge Armour struggled for his attention, “Mister Herbert! Mister Herbert! Mister Herbert! When I sustain an objection listen to me! I said, ‘Irrelevant!’”
During the second week of trial, the judge excused the jury early for lunch break. While they were out, judge Armour spoke to Herbert, “You are being sarcastic, abusive, disrespectful to witnesses. I have warned you about that before, that’s all I have to say.”
The jury deliberated for about four hours before declaring Herbert guilty of all charges: six felony animal abuse charges, one felony burglary charge, plus four misdemeanor vandalisms for tire damage.
Victims are expected to speak to the judge before sentencing, now scheduled for December 14, 2018, at 9:00 am, before Honorable judge Carlos Armour, the same judge who heard the trial, in San Diego’s North County Superior Courthouse in Vista.