Filed 11/15/13 P. v. Lee CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037729
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F20687)

         v.

ELLIS LEE,

         Defendant and Appellant.


         In October 2011, a jury convicted defendant Ellis Lee of felony cruelty to an
animal (Pen. Code, § 597, subd. (b))1 and misdemeanor failure to care for an animal (§
597f, subd. (a)). These convictions were the result of defendant’s placement of a “hair
tie”2 around the muzzle of her puppy, which caused deep lacerations and scarring. On
appeal, defendant argues her defense counsel provided ineffective assistance by failing to
object to expert testimony from veterinarians. She also claims the trial court erred by
ordering her to pay $1,000 for appointed counsel’s services without providing adequate
notice or hearing. For the reasons stated here, we will affirm the judgment.




         1
           Unspecified statutory references are to the Penal Code.
         2
           The device was described variously at trial as a “hair tie,” a “hair band,” and a
“rubber band.” A similar object received from defendant was marked as an exhibit at
trial, but the record does not contain a description of its size, shape or material.
            I.       FACTUAL AND PROCEDURAL BACKGROUND
       According to testimony at trial, defendant purchased a purebred Husky puppy in
September 2010 and named it Syerra. Defendant bought Syerra to provide her other dog,
Striker, with company because defendant spent much of each day working at a restaurant
and attending classes full time at U.C. Santa Cruz. The two dogs initially lived together
in the garage of the residence defendant shared with two roommates, but defendant
relocated Syerra to a crate when the two dogs did not get along. The crate dimensions
were described as “about two by two by two or three-feet in diameter.” On days when
defendant attended classes, Syerra stayed in the crate for up to 11.5 hours. Defendant
testified she did not take Syerra for walks because she did not have time to train her.
       Stacey Gee, one of defendant’s roommates when she owned Syerra, testified that
one day in October 2010, the third roommate discovered Syerra in her crate in the garage
with a hair tie around her muzzle. When the roommate brought Syerra upstairs, Gee
noticed the puppy was “cut up . . . [a]round its snout . . . .” According to Gee, Syerra’s
crate was covered in feces and Syerra’s fur had brown and yellow stains on it. Gee and
the other roommate cleaned the dog and the crate. The roommates confronted defendant
about her treatment of Syerra and provided food and water to the puppy for roughly one
week. They ultimately reported defendant to an animal control officer for the County of
Santa Cruz when Syerra’s injuries did not improve and defendant appeared unwilling to
provide Syerra the help she needed. Though the length of time the hair tie was attached
to Syerra’s muzzle was disputed, it was attached for at least a number of hours.3

       3
          Defendant claimed the hair tie was on for only a matter of hours because she
placed it on Syerra before leaving for work and returned home that same day to find that
someone had removed it. Gee testified that she heard defendant tell the animal control
officer the hair tie had been on for three days. The animal control officer, Shauna
Urratio, testified defendant told her she had put the hair tie on the dog about a week prior
but could not recall when it was taken off. Based on the extent of Syerra’s injuries, the
veterinarians who testified during the trial also had differing estimates about the length of
                                                                                 (Continued)
Regardless of the duration, defendant admitted placing the hair tie on Syerra to prevent
her from making noise and acknowledged that the hair tie prevented Syerra from opening
her mouth.
       Animal Control Officer Shauna Urratio testified that she went to defendant’s
residence to inquire about Syerra on October 31, 2010, in response to a call she received
a day earlier. Urratio immediately noticed the wound on Syerra’s muzzle, describing it as
red, inflamed, and infected. She also noted the surrounding fur was matted with pus from
the wound. Syerra seemed lethargic, which Urratio stated was atypical behavior for
puppies generally and Husky puppies in particular.4 Urratio explained she was concerned
about Syerra’s wellbeing given the injury to her muzzle, the small size of the crate, the
lack of water inside the crate, and what she perceived as a non-responsive and rude
attitude on the part of defendant. As a result of her observations, Urratio gave defendant
two options: either take Syerra to a veterinarian and report back to Urratio or surrender
the dog to the County. Defendant chose to surrender the dog.
       After defendant surrendered Syerra, Dr. Jay Vick examined and treated the dog.
Dr. Vick testified that Syerra had a laceration all the way around the circumference of her
muzzle through the full thickness of her skin. The injury was consistent with pressure
having been applied on the area for a prolonged time. Based on the inflammation,
swelling, and infection in the area, Dr. Vick estimated the hair tie had been on Syerra’s
muzzle between five and 14 days. Apart from the significant injury to her muzzle,
however, Dr. Vick testified Syerra seemed healthy, well-hydrated, and well-fleshed.


time the hair tie was attached to Syerra. The initial treating veterinarian, Dr. Jay Vick,
who testified on behalf of the People, estimated a range of 5 to 14 days while the defense
veterinarian, Dr. David Shuman, stated it could have been there for “a day easily” but
disagreed with Dr. Vick’s longer estimate.
       4
         Urratio conceded at trial that since she had never interacted with Syerra before
she did not know if this lethargy was atypical behavior for Syerra.
       A family from Walnut Creek adopted Syerra.5 The mother of the family, Terry
Shaw-Krivosh, testified that although Syerra seemed healthy, the dog had little energy
despite being a puppy. Fearing something was wrong, the new owners took the dog to
Dr. Susan Le, who diagnosed Syerra with an adhesion, which Dr. Le explained is an
unnatural connection between the mucus membrane of the right lip and the right gum.
Dr. Le performed surgery to prevent the dog’s mouth from becoming deformed as a
result of the adhesion. Like Urratio and Shaw-Krivosh, Dr. Le noted Syerra was
withdrawn and quiet, which was behavior she found unusual for a Husky puppy. Dr. Le
also observed scarring on Syerra’s muzzle.
       The jury heard testimony from a number of witnesses, including three
veterinarians: Dr. Jay Vick, Dr. Susan Le, and Dr. David Shuman. During the People’s
examination of Dr. Vick, the prosecutor asked him what he thought were the bare
necessities for the proper treatment and care of a dog. Dr. Vick responded with a number
of “common sense things” that he described by using an “ethical framework” from
Europe called the “Five Freedoms:” (1) freedom from thirst and hunger; (2) freedom
from discomfort; (3) freedom from pain, injury, and disease; (4) freedom to express
normal animal behavior; and (5) freedom from fear and distress.
       The prosecutor also posed hypothetical questions based on the facts of defendant’s
case and asked Dr. Vick whether he thought the conduct in the hypothetical situations
would be a gross departure from an ordinary pet owner’s standard of care. Dr. Vick
responded that he believed each of the three hypothetical situations: (placing a band
around a dog’s muzzle; requiring a dog to live in a small crate covered in its own urine
and feces; and, placing a band around a muzzle that results in injuries) would be a gross
departure. Defense counsel objected to each hypothetical, arguing they called for a legal

       5
         The adoptive family renamed the dog Luna but we use Syerra for the sake of
consistency.
conclusion. The court overruled the objections but gave the jurors a limiting instruction
to the effect that they were responsible for making the ultimate decisions and that all
testimony was provided merely to assist them in making their own independent decision.
       In addition to Dr. Vick, the People called Dr. Le, who had performed the surgery
to remedy Syerra’s adhesion. In response to the same hypotheticals posed to Dr. Vick,
Dr. Le also opined that each situation would constitute a gross departure from the
ordinary standard of care for a dog. The only veterinarian that did not consider the
hypothetical situations unlawfully cruel was the defense witness, Dr. Shuman. He stated
that, while it was not normal behavior, conduct similar to defendant’s was not a
sufficiently serious departure from the ordinary standard of care to constitute animal
cruelty.
       The jury found defendant guilty of felony cruelty to an animal (§ 597, subd. (b))
and misdemeanor failure to care for an animal (§ 597f, subd. (a)). The court suspended
imposition of sentence for five years and required defendant to serve 240 days jail,
among other conditions of probation. The court then discussed attorney fees.6
       The court first made findings regarding defendant’s ability to pay, noting she had a
job and that, while she paid monthly fees for a vehicle and car insurance, “[t]hese are
discretionary matters, not necessities.” The court then took judicial notice of the public
defender’s contract with Santa Cruz County and estimated that the public defender’s
costs for the case, including eight pretrial appearances and a three-day jury trial, were
$6,000. Balancing those findings, the court ordered defendant to pay $1,000 in attorney
fees within three years. Finally, the court asked, “Ms. Lee, are you willing to accept that
as reasonable, please?,” to which defendant replied “Yes.”

       6
          We note that when the public defender was appointed at the beginning of the
case, the court informed defendant that “I may assess fees at the end if it turns out that
you have an income and I decide that you can contribute towards the assistance of your
lawyer.” Defendant agreed to representation on that basis.
                             II.              DISCUSSION
       Defendant makes two ineffective assistance of counsel arguments and also
challenges the order that she reimburse Santa Cruz County for part of the public
defender’s fees.
A.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant argues her trial counsel provided ineffective assistance by failing to
object to testimony by the three veterinarians. To prevail, defendant must show both that
her trial counsel’s performance was deficient and that the deficiency prejudiced
defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To prove prejudice,
defendant must affirmatively show a reasonable probability that, but for her trial
counsel’s errors, the result would have been different. (Id. at pp. 217-218.) A reasonable
probability is one “ ‘sufficient to undermine confidence in the outcome.’ ” (Id. at p. 218,
quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694.) Finally, “[i]f a claim
of ineffective assistance of counsel can be determined on the ground of lack of prejudice,
a court need not decide whether counsel’s performance was deficient.” (In re Crew
(2011) 52 Cal.4th 126, 150, citing Strickland, supra, at p. 697.)
           1. The Standard of Care for a Pet Owner is not a Matter within the
              Common Experience of the Jury

       Defendant contends her counsel should have objected to questions asked of the
three veterinarians on the basis that their testimony was within the common experience of
the jury. Evidence Code section 801 allows experts to provide opinions “[r]elated to a
subject that is sufficiently beyond the common experience that the opinion of an expert
would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a).)7 In essence, defendant

       7
          We note that none of the witnesses was identified as an expert and neither party
ever explicitly qualified them as such. Nonetheless, because both parties treat the
veterinarians’ testimony as that of experts, we will assume for purposes of this analysis
that they were expert witnesses.
argues that the proper standard of care for a dog is a subject thoroughly within common
experience, and as such was not a proper subject for expert testimony.
       We first turn to the question of prejudice. Had trial counsel made an Evidence
Code section 801 “common experience” objection, we are not convinced the trial court
would have sustained it. Though there is no California case on point, cases in other
jurisdictions have allowed expert testimony on the standard of care for the treatment of
animals. (See State v. Cochran (Mo.Ct.App. 2012) 365 S.W.3d 628, 636, fn. 6 [although
the appellant had waived the issue for failure to raise it timely, “expert testimony as [to]
the proper care of animals . . . cannot be assumed to be within the common experience of
the lay juror”]; State v. Fowler (N.C.Ct.App. 1974) 205 S.E.2d 749, 751 [refusing to
allow expert testimony on dog training methods of punishing dogs was error].) Though
dogs are an integral part of many people’s lives, dog ownership is not so universal that
expert testimony on the proper standard of care for a puppy would not assist a jury.
       Even assuming the trial court would have sustained the objection, defendant still
cannot show prejudice. First, the trial court made clear through a limiting instruction
that, while they should listen to the testimony, it was for the jurors to decide whether
defendant subjected Syerra to needless suffering through gross negligence. Second, the
People provided ample evidence to support defendant’s conviction. Defendant focuses
on the conflicting evidence regarding how long the hair tie was on Syerra’s muzzle. But
the extent of Syerra’s severe injuries were undisputed by defendant and documented with
several pictures entered into evidence, as well as testimony by Gee, Urratio, and the two
treating veterinarians. Also undisputed was the scarring that resulted from those injuries.
       In addition to physical injuries, the jury heard testimony from animal control
officer Urratio, Syerra’s adoptive family, and Dr. Le regarding Syerra’s lethargy, which
they all testified was atypical puppy behavior. From this the jury could have concluded
that the hair tie incident caused emotional injury to Syerra. Finally, to the extent there
was conflicting evidence, the jury was entitled to weigh the evidence and determine the
credibility of the witnesses. We do not disturb credibility determinations on appeal.
(People v. Elliott (2012) 53 Cal.4th 535, 585 [“ ‘it is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends’ [Citation.]”].) Based on the extensive evidence of
physical and mental injury to Syerra, we see no reasonable probability defendant would
have obtained a better result had the trial court not allowed the veterinarians to testify
regarding the proper standard of care.
          2. Dr. Vick’s Testimony Regarding the Five Freedoms was Relevant to
             the Standard of Care

       Defendant also contends her trial counsel was ineffective for failing to object on
relevance grounds to Dr. Vick’s testimony about the ethical framework known as the
“Five Freedoms.” Evidence Code section 350 states that only relevant evidence is
admissible. (Evid. Code, § 350.) Evidence Code section 210 broadly defines “relevant
evidence” as “evidence . . . having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code, §
210, italics added.) Similar to our analysis above, we find no reasonable probability
defendant would have obtained a better result had her trial counsel objected to the
relevance of the “Five Freedoms” testimony.
       We are doubtful the trial court would have sustained a relevance objection. The
testimony at issue came in response to the prosecutor asking Dr. Vick to describe the
“bare necessities” for the proper treatment and care of a dog. Dr. Vick answered by
describing the “Five Freedoms” that should be afforded to animals. Dr. Vick explained
he was answering in terms of these freedoms because the term “abuse” lacks clarity and
detail. We find Dr. Vick’s discussion of the “Five Freedoms” relevant because the
testimony does have some tendency in reason to describe the standard of care for a dog,
which is central to the charges here.
       Even if the trial court would have sustained a relevance objection, defendant still
cannot show prejudice. The jury heard testimony from multiple witnesses and viewed
numerous exhibits detailing the extent and nature of Syerra’s injuries, both physical and
emotional. The jury also heard defendant admit she placed the hair tie on Syerra’s
muzzle. In light of the evidence presented, we find no reasonable probability defendant
would have obtained a more favorable result had the jury not considered the “Five
Freedoms” testimony. Because we find defendant was not prejudiced by her trial
counsel’s failure to pursue the objections discussed here, we need not determine whether
her trial counsel’s performance was deficient. (In re Crew, supra, 52 Cal.4th at p. 150.)
B.     ATTORNEY FEES (§ 987.8)

       Defendant raises two issues regarding attorney fees. First, she argues she received
inadequate notice of a hearing on her responsibility to pay for the services of the public
defender. Second, she argues the order requiring her to pay attorney fees was not
supported by substantial evidence.
           1. The Notice and Hearing Were Adequate

       Before appointing counsel for indigent defendants, trial courts must give notice
“that the court may, after a hearing, make a determination of the present ability of the
defendant to pay all or a portion of the cost of counsel.” (§ 987.8, subd. (f).) The court
must also give notice that it will order the defendant to pay all or part of the cost of
representation if the court determines the defendant has the present ability to do so.
(Ibid.) Finally, “[t]he notice shall inform the defendant that the order shall have the same
force and effect as a judgment in a civil action and shall be subject to enforcement against
the property of the defendant in the same manner as any other money judgment.” (Ibid.)
In addition to the above-mentioned notice provision, section 987.8, subdivision (b) states
“upon conclusion of the criminal proceedings . . . the court may, after notice and a
hearing, make a determination of the present ability of the defendant to pay all or a
portion of the cost thereof.” (§ 987.8, subd. (b).)
       Defendant claims she received inadequate notice of her potential responsibility to
reimburse the County of Santa Cruz for the services of her trial counsel. When the court
first appointed an attorney for defendant, the court stated: “It may not be completely free.
It probably will be, except for the registration fee, but I may assess fees at the end if it
turns out that you have an income and I decide that you can contribute towards the
assistance of your lawyer.” While this notice does not perfectly match the language of
section 987.8, subdivision (f), a faulty notice does not compel reversal unless defendant
can show she was prejudiced. (People v. Smith (2000) 81 Cal.App.4th 630, 638.)
       In Smith, the First Appellate District determined that although the notice the
defendant received upon appointment of counsel was technically deficient, the defendant
was not prejudiced by the error. (Smith, supra, 81 Cal.App.4th at pp. 638-639.) The
court reasoned the defendant “was not in the dark regarding the possibility he might have
to pay attorney fees” because prior statements of the court were “sufficient to alert [him]
that the concept of reimbursement for attorney fees and costs could apply to him.” (Id. at
pp. 637, 638-639.) Additionally, the defendant in Smith received not only a hearing on
his ability to pay but also a continuance and second hearing so that he could provide
further briefing on the issue to the court. (Id. at p. 639; see also Conservatorship of Rand
(1996) 49 Cal.App.4th 835, 840-841 [finding no prejudice despite faulty notice when
individual was provided a hearing where he was present and represented by counsel].)
       Here, based on the court’s statements when the public defender was appointed,8
defendant was likewise not in the dark about the possibility that she would have to pay
for some or all of the costs of representation. Defendant was also present and represented


       8
           See footnote 6, ante, page 6.
by counsel at the sentencing hearing when the trial court discussed attorney fees and her
ability to pay. Further, at that hearing the court solicited a response from defendant
personally rather than through her attorney regarding the estimate of the costs and the
amount the court sought to recover from defendant. Defendant stated she agreed to the
terms of payment described by the court. Had defendant desired to contest any of the
court’s findings regarding her ability to pay or the reasonableness of the fees ordered, she
was free to do so at that time. Defendant did not object at that time and has not shown
prejudice resulting from the form of the court’s notification.
          2. The Fee Order is Supported by Substantial Evidence

       Defendant’s final argument is that the trial court’s finding of her ability to pay
attorney fees was not supported by substantial evidence. We disagree.
       A trial court’s finding of a defendant’s ability to pay must be supported by
substantial evidence but need not be express; it may also be implied “through the content
and conduct of the hearings.” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398,
disapproved on other grounds by People v. McCullough (2013) 56 Cal.4th 589, 599.)
The trial court expressly found defendant was presently employed and that her monthly
obligations included what the court deemed discretionary items in the form of a car loan
and car insurance payments. Though the amount of attorney fees imposed -$1,000 -was
not trivial, the trial court allowed defendant three years to complete the payment. Finally,
defendant was present at the hearing regarding sentencing and attorney fees, had the
opportunity to object, and did not do so. We find sufficient evidence in the record to
support the trial court’s finding and associated order.
                           III.   DISPOSITION
      The judgment is affirmed.
                                  ____________________________________
                                  Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
