Filed 11/15/ 13 P. v. Lee CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,

v.
ELLIS LEE , Defendant and Appellant. H03 7 729 (Santa C ruz County Super. Ct. No. F20 687 )

In October 2011, a jury convicted d efendant Ellis Lee of felony cruelty to an
animal (Pen. Code, § 597, subd. (b)) 1 and misdemeanor failure to care for an animal ( §
597 f , subd. (a) ). These convictions were the resul t of defe ndant’s placement of a “ hair
tie ” 2 around the muz zle 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 PROCEDUR AL BACKGROUND

According to te stimony 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 clas ses full time at U.C. Santa Cruz. T he 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 G ee, o ne 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 p uppy was “cut up

. . . [ a ] round its snout

. . . . ” According to Gee, Syerra ’s

crate was cover ed 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 improv e and defen dant appeared unwilling to

p rovide Syerra the help she need ed

. 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 contro l 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 th e 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 3 1 , 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 option s : either take Syerra to a veterinarian and report back to Urratio or surre nder the dog to the County. Defendant chose to surrender the dog.
After defendant surrendered S yerra , 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 betw een 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 ran ge 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 T he mother of the family , Terry

Shaw

- Krivosh, testifie d that although Syerra seemed healthy, the dog had little energy despite being a puppy. Fearing something was wrong, the new owner s took the dog to Dr. Susan Le, who diagnosed Syerra with an adhesion, which Dr. Le explained is an
unnatural connection betw een 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.
T he jury heard testimony from a number of witnesses , including three veterinarians: Dr. Jay Vick , Dr. Susan Le , and D r. 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
Euro pe 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 p osed 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 believ ed 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 , pla cing 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 hypothetical s posed to Dr. Vick,
Dr. Le also opined that each situation would constitute a gross departure from the ordinary standard of car e 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 sufficient ly 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 ( § 597 f , subd. (a) ). The court suspended imposition of sentence for five years and required defendant to serve 240 days jail,

among other conditions of probation. T he 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 pa id 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 estimate d that the public defender’s

costs for the case, including eight pretrial appearances and a three

- day j ury trial, were $6,000. Balancing those findings, the cou rt ordered defendant to pay $1,000 in attorney
fees with in 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 inf

ormed 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 o f counsel arguments and also challenges the order that she reimburse Santa Cruz County for part of the public
defender’s fees.
A. I NEFFECTIVE A SSISTANCE OF C OUNSEL 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
def endant. ( 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 la ck 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 J ury
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 witness es 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 conv inced 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.A pp. 2012) 365 S.W. 3 d 628, 636 , fn. 6 [ althoug h the appellant had waived the issue for failure to raise it timely , “ expert tes timony 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.A pp. 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 te stimony , 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. D efendant 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 th ose 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 letha rg y , 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 evi dence and determine thecredibility 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 witn ess 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 reason able probability defendant would
have obtained a better result had the t rial 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.) Simil ar 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 ob jection

. 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 “ab use” 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 standar d 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. T he jury heard testimony from multiple witnesses and viewed
numerous exhibits detailin g 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 perf

ormance was deficient. ( In re Crew , supra, 52 Cal.4th at p. 150.)
B. A TTORNEY F EES ( § 987.8)

Defendant raises t w o 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).) Th e 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 sub ject to enforcement against the property of the defendant in the same manner as any other money judgment. ” ( Ibid. )
I n 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 ahearing, 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, b ut 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 recei ved upon appointment of counsel was t echnically deficient, the defendant was not prejudiced by the error . ( Smith
, supra , 81 Cal. App. 4th at pp. 638

- 639.) T he 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 S mith received not only a hearing on
his a bility 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 wh en 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

. D efendant 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 co urt’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 substa ntial 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 (201 3 ) 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 c ar loan

a nd 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 attorne y fees, had the opportunity to object, and did not do so

. We find sufficient evidence in the record to support the trial court’s f

inding and associated order.III. DISPOSITION

T he judgment is affirmed.

____________________________________ Grover, J.

WE CONCUR:

____________________________ Rushing, P.J.

____________________________ Márquez , J.