1

Filed 4/6/23 P. v. Souter CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PAUL JOSEPH SOUTER,

Defendant and Appellant.

A161941

 (San Mateo County

 Super. Ct. No. 16SF009515A)

THE PEOPLE,

Plaintiff and Respondent,

v.

SHELBY LYNNE LUJAN,

Defendant and Appellant.

A162047

 (San Mateo County

 Super. Ct. No. 16SF009515B)

In these consolidated appeals, Shelby Lynne Lujan and 

Paul Joseph Souter appeal after a jury convicted them each of 

criminally negligent animal cruelty (Pen. Code, § 597, subd. (b)) 

involving the death of Lujan’s dog.1 The trial court suspended 

imposition of sentence, placed both Lujan and Souter on two 

years’ probation, and ordered them to serve (respectively) 90 days 

and eight months in county jail. 

1 Undesignated statutory references are to the Penal Code. 
2

Lujan and Souter raise numerous arguments, including 

insufficiency of the evidence; clerical error; evidentiary challenges 

(and related claims of ineffective assistance of counsel); and that 

recent changes in the law require us to vacate certain imposed 

fees. We agree only in part and modify the orders of probation to 

strike the probation supervision and jurisdiction transfer fees. In 

all other respects, we affirm.2

BACKGROUND

A.

Section 597, subdivision (b), provides (in relevant part): 

“[W]hoever, having the charge or custody of any animal, either as 

owner or otherwise, subjects any animal to needless suffering, or 

inflicts unnecessary cruelty upon the animal, or in any manner 

abuses any animal, . . . is, for each offense, guilty of a crime.” In 

other words, “criminal liability under section 597(b) may be 

imposed on a person who has custody of, or is responsible for 

providing care to, an animal and commits an act or omission 

proscribed by that subdivision that recklessly exposes the animal 

to a high risk of death” or great bodily injury. (People v. Riazati

(2011) 195 Cal.App.4th 514, 531 (Riazati), italics omitted.) 

B.

In 2015, Lujan adopted a small breed puppy named 

Sprocket. Sprocket primarily lived with Lujan in a room she 

rented in San Bruno. 

In January 2016, Lujan and Sprocket traveled to New 

Mexico, where Lujan was raised. While there, Lujan began 

2 Souter also filed a petition for writ of habeas corpus (In re 

Souter (Sept. 16, 2022, A166115)), which raises the same 

ineffective assistance of counsel arguments that he raises on 

appeal. We deferred the question of whether to issue an order to 

show cause pending this appeal. By separate order, we deny the 

habeas petition.
3

dating Souter and, in April 2016, Souter and his dog (Athena) 

joined Lujan and Sprocket in her room in San Bruno. 

On April 19, Souter was caring for Sprocket while Lujan 

was at school, when Souter texted Lujan, “ ‘Your dog got burned 

with hot water cause I was trying to make tea and tripped over 

Athena and spilt the hot water on the floor where your dog was 

laying.’ ” Lujan responded, “ ‘My poor baby!’ ” and asked if 

Sprocket was in pain. Souter texted back: “ ‘I feel bad for him. 

[¶] . . . [¶] . . . I’m sorry babe. He will walk but he is just laying 

down but yeah he looks like it hurts.’ ” Souter also sent Lujan a 

photograph that showed Sprocket’s bright pink underside. 

Heather P., who worked as a veterinary technician for a 

local veterinary hospital, remembered speaking to a man on the 

phone (in April 2016) who said he “accidentally spilled hot water 

on his dog” and wanted to know if he could treat the burns at 

home. She told the man that most burns are easily infected, said 

that he should have the dog examined by a veterinarian, and 

provided him with information for an emergency veterinary 

clinic. The man repeatedly asked if he could treat the dog’s 

wounds with burn cream, but Heather told him that doing so was 

not recommended and that he should take the dog to a 

veterinarian. 

C.

Two days later, on April 21, Lujan and Souter exchanged 

text messages wherein Souter admitted he was still feeding and 

disciplining Sprocket. Souter returned to New Mexico three days 

later, on April 24. 

The next day, Lujan texted him two photos of Sprocket, 

which showed extensive blistering and pus on Sprocket’s 

underside. They also exchanged the following text messages:

“Souter: [Were] they like that before the bath it might be 

skin coming off from healing.
4

“Lujan: Well he was laying down and when I checked on 

him he was like all wet there as if he was sweating. So I took 

him potty and then wanted to wash him off . . . [¶] . . . [¶]

“Lujan: Some of them looked like they opened up so they 

are not full of liquid . . . it’s like open skin so I wanted to be sure 

they were clean.

“Souter: Well pop one and see I guess.

“Souter: Oh it might just be the healing. What [does] the 

skin under it look.

“Lujan: Just like a raw open wound.” 

Lujan next texted Souter a photo that showed a tissue with 

puss on it. They then texted the following:

“Lujan: That’s what color it is though . . . it doesn’t smell 

and there is nothing puffy or red around the skin.

“Souter: Well then it [is probably] just the healing process 

most likely just realized moved the skin from the ones that are 

open and keep it clean.

“Lujan: Okay thanks my love.

“Lujan: Should I put peroxide on it or just the spray we 

bought.

“Souter: Put peroxide and if he curled with you or was you 

sweet on him so you need to leave him in the cage.” Lujan agreed 

and told Souter that Sprocket had fallen off the bed in the middle 

of the night. 

The next day (April 26), Souter asked how Sprocket was 

doing. Lujan replied, “ ‘Well he won’t do simple things like trying 

to jump out of the tub or seats in the car. And he won’t lift his leg 

to pee at all. He tried today but it was his left leg and he fell 

over. . . . [¶] . . . And he has stopped going into his crate. He 

couldn’t lift his leg up so we went and laid in Athena’s crate.’ ” 
5

Souter said, “ ‘It might be how the burns also it is going to be a 

little tight for him he won’t be able to move fully [until] it is 

healed and he is able to stretch the tissue out cause all he has 

been doing is laying down. And not working any muscles or 

eating so he is getting weak.’ ” Lujan responded, “ ‘I gave him the 

other can of wet food that I had and he ate about half of it. But 

he is pretty much refusing hard foods.’ ” Lujan said, “ ‘I may have 

to take him in’ ” but also attributed Sprocket’s lack of appetite to 

a bad tooth. However, Souter said, “ ‘It might be hard for him to 

eat you can feel how much weight he [lost he] is [probably] 

[wea]k.’ ” 

Later in the conversation, Souter instructs Lujan to “ ‘feed 

him regular amounts of food and start to mix hard food with the 

wet food and he will gain his weight back.’ ” He also noted that 

“ ‘[Sprocket] doesn’t move around so he is losing muscle mass 

[because] his body is focused on healing . . . right now.’ ” Lujan 

admits, “ ‘Okay, I’m just super worried about him. I just don’t 

want him to be ill from something else thinking it’s just him 

healing from the burn.’ ” Souter responds, “ ‘Well you do what 

you want but I am just saying after feeling him he is just skinny 

and weak.’ ” 

On April 27, Lujan noted that “ ‘all Sprocket does is lay 

around,’ ” that she had seen him with his tail out from between 

his legs “ ‘for the first time in forever,’ ” and that his “ ‘blisters are 

like self [popping] and then [scabbing] over but before they scab 

he is all sticky.’ ” Lujan also sent Souter another photo of 

Sprocket’s abdomen, which was now black. Lujan said, “ ‘It looks 

much better dried out,’ ” and Souter replied that “ ‘he looks like 

he [is] healing nicely.’ ” 

On April 29, Lujan texted Souter to tell him that Sprocket 

was “ ‘healing really well’ ” but also sent him a photo that showed 

the dog sleeping in an awkward position that avoided contact 

between his burns and the dog bed. 
6

On April 30, Lujan texted Souter to tell him that Sprocket 

had an accident indoors and “ ‘had blood in his poop.’ ” Souter 

suggested that she watch him at home and wait to see if there 

was more blood the next day. When Lujan said she was 

“ ‘freaking out’ ” and going to call her vet in the morning, Souter 

added, “Well you can call an emergency vet if you want answers 

now but all vet[s] do is tell you to bring them in.” 

Later that same night, Lujan told Souter that she was 

purchasing medical scissors and peroxide and that she planned to 

cut Sprocket’s “ ‘dead’ ” skin off. She also commented that “ ‘the 

puss from the blisters stinks so bad’ ” and sent photographs that 

showed open wounds on Sprocket’s hind legs. After they 

discussed cutting off Sprocket’s skin, she sent a photo of 

Sprocket’s hind legs with the skin removed—which showed raw 

exposed wounds. She acknowledged removing the skin was 

painful for Sprocket and said, “That is so hard to do on my own!!!” 

On May 1, Lujan told Souter that Sprocket could not stand 

up, his feces were “ ‘black and runny,’ ” that Sprocket had not 

eaten on his own in two days, and that he was like a “ ‘limp 

noodle.’ ” When she texted Souter to tell him that she was taking 

Sprocket to the emergency vet, Souter asked if she was mad at 

him. Lujan replied, “ ‘No I’m not mad at you I’m more mad at 

myself. If I had just brought him in maybe it would not be so 

bad.’ ” 

D.

The treating veterinarian (Dr. Eric Barchas) testified that 

Sprocket was in “very, very poor condition” and “extremely 

emaciated”—having lost roughly one-third of his body weight—

when he arrived at the clinic. At this point, there was no chance 

that Sprocket would survive. 

Dr. Barchas described Sprocket as having suffered third 

degree burns to large (and symmetrical) portions of the underside 
7

of his body, including his footpads, legs, genitals, belly, and his 

chest. Sprocket could not maintain a normal body temperature, 

was dehydrated, and was in both hypovolemic shock and septic 

shock. He was not fully conscious and did not have the strength 

to stand or to roll over. Much of Sprocket’s skin was black, which 

indicated it was dead and would not heal. Sprocket emitted a 

“very strong odor of infection.” He was also shedding his 

intestinal lining, which contributed to the foul smell. 

Dr. Barchas first administered pain medication because 

Sprocket was in obvious “agonizing pain”, as evidenced by his 

continuous whimpering and flinching when the burned areas 

were touched. Dr. Barchas discussed Sprocket’s grave prognosis 

and suffering with Lujan. He also recommended euthanasia, 

which she declined. 

Dr. Barchas attempted to treat Sprocket with intravenous 

pain medication and antibiotics. But Sprocket died—when his 

heart stopped—about five hours after arriving at the clinic. Dr. 

Barchas, who is a mandatory reporter, reported his suspicion 

that Sprocket did not receive appropriate care to the Peninsula 

Humane Society. 

Three weeks after Sprocket’s death, an investigator with 

the Peninsula Humane Society (Christina Hanley) interviewed 

Lujan. Lujan insisted that both she and Souter were there when 

Sprocket was accidentally burned and that they followed a 

veterinarian’s suggestion that Sprocket could be treated at 

home—by keeping his burns clean and dry with gauze and burn 

cream. 

Specifically, Lujan told Hanley that Souter had called two 

or three veterinarians in the San Bruno area for advice and that 

some of the receptionists he spoke to had advised him to bring 

Sprocket in “immediately” while others said Sprocket could be 

treated at home. Lujan admitted that Sprocket started losing “a 

lot of weight” almost immediately after he was burned. 
8

Hanley also briefly interviewed Souter (twice), but neither 

interview was recorded. Souter’s account was the same as 

Lujan’s, except that he stated not a single veterinarian advised 

him to bring Sprocket in for examination. Souter could not 

provide names for any of the veterinarians or hospitals he called. 

Lujan was reinterviewed and confronted with the fact that 

every veterinarian’s office that investigators spoke to said that 

they would never tell someone to treat a burned dog at home. In 

fact, the receptionists Hanley spoke to explained that they were 

forbidden from giving medical advice over the phone. Lujan 

continued to maintain that she was present when Sprocket was 

burned. She also denied smelling any odor on Sprocket after the 

burns. 

E.

Veterinarian Dr. Melinda Merck testified, as an expert 

witness on veterinary medicine and forensic science, that third 

degree burns are always serious injuries (and sometimes fatal) 

for dogs. An owner should bring a burned animal to the vet as 

soon as possible because burns cause immense pain and require 

the administration of pain medication, antibiotics, antianxiety 

medication, and sometimes anesthesia. An animal is at greatest 

risk for developing severe complications, such as septic shock, 

five to seven days after a serious burn. 

Dr. Merck testified that the home treatment Lujan and 

Souter provided—removing Sprocket’s dead skin, touching his 

burns, bathing him, and applying antiseptic—would have been 

very painful and contributed to Sprocket’s shock, infection, and 

fluid loss. 

F.

Souter’s phone records showed that he made three phone 

calls to veterinary hospitals on April 19. The calls lasted 

approximately two, three, and five minutes, respectively. 
9

By the time of trial, Lujan and Souter were no longer 

dating. Lujan testified that, on April 19, Souter was caring for 

Sprocket while she was at school. After learning of the burns, 

she spoke to Souter over the phone and decided he would call 

veterinarians for advice. She admitted lying to Hanley (on three 

separate occasions) about being present at the time Sprocket was 

burned. She lied because she thought no one would otherwise 

believe that Souter accidentally burned Sprocket. 

Lujan and Souter bought first aid supplies to treat 

Sprocket at home. They did so because she understood that only 

one veterinarian advised Souter to bring Sprocket into the 

hospital; all the others advised treating him at home. She 

believed Souter because, having been around farm animals her 

whole life in New Mexico, she was accustomed to calling a 

veterinarian and then following instructions at home. 

Lujan did not take Sprocket to the vet sooner because she 

did not know he was in pain and thought he was healing. 

Although she knew that burns could lead to infection, she was 

not concerned about Sprocket’s blackened skin, his popping 

blisters, or his raw, open wounds and did not believe Sprocket 

was in pain. Lujan testified that Sprocket did not begin 

whimpering until she brought him to the vet on May 1. She 

attributed the fact that Sprocket stopped eating dry food to a bad 

tooth. Alternatively, she thought it meant that he was healing. 

However, she admitting knowing Sprocket was in pain when he 

could not lift his leg to urinate. 

Two character witnesses testified that Lujan was good with 

animals. One of the veterinarians, who evaluated Sprocket on 

the day he died (but after his wounds had been dressed and 

cleaned), testified that he did not remember a particularly strong 

odor. He described Lujan as distraught, worried, and panicked. 
10

G.

A jury convicted both Lujan and Souter on one count each 

of criminally negligent animal cruelty (§ 597, subd. (b); count 

two). The jury was unable to reach a verdict on count one—for 

purposeful and malicious animal cruelty (§ 597, subd. (a))—which 

was charged only against Souter. 

At sentencing, the court denied defense motions to reduce 

both felony convictions to misdemeanors (§ 17). The court 

suspended imposition of sentence and placed both Lujan and 

Souter on two years’ felony probation, on the condition that they 

serve 90 days and eight months (respectively) in county jail. 

Among other fines and fees, the trial court imposed a probation 

supervision fee (of up to $100 per month) and a jurisdictional 

transfer fee ($600). 

DISCUSSION

A.

Lujan argues that insufficient evidence supports her 

conviction because there is no substantial evidence that she 

caused great bodily injury or death to Sprocket. We disagree.

1.

When faced with a substantial evidence challenge, we 

“must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence -- that is, evidence which is reasonable, credible, and of 

solid value -- such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Johnson

(1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 

U.S. 307, 318-319.) We do not reweigh the evidence, resolve 

conflicts in the evidence, or reevaluate witness credibility. 

(People v. Jones (1990) 51 Cal.3d 294, 314.) The same standard of 

review applies to cases in which the People rely mainly on 
11

circumstantial evidence. (People v. Cravens (2012) 53 Cal.4th 

500, 507.) 

2.

Lujan insists that she cannot be convicted of violating 

section 597, subdivision (b), because she did not cause Sprocket’s 

great bodily injury or death. In support of her argument, Lujan 

notes that it is undisputed Souter inflicted Sprocket’s third 

degree burns and asserts that Sprocket’s death was thereafter 

inevitable. In her view, nothing she did (or failed to do) had any 

effect. 

Lujan misconceives the relevant inquiry. The question is 

not whether she caused Sprocket’s burns or his death. The 

animal cruelty statute, like the child endangerment statute (§ 

273a), does not require any actual harm or injury be caused by 

the defendant’s acts or omissions. (See People v. Valdez (2002) 27 

Cal.4th 778, 784; Riazati, supra, 195 Cal.App.4th at p. 531.) 

Instead, in a needless suffering case (like this one), the relevant 

inquiry is whether the defendant’s acts or omissions recklessly 

exposed the animal to a high risk of death or great bodily injury. 

(§ 597, subd. (b); Riazati, at p. 531; People v. Brunette (2011) 194 

Cal.App.4th 268, 284.)

3.

Here, substantial evidence supports the jury’s implicit 

finding that Lujan’s grossly negligent acts or omissions created a 

high risk of Sprocket’s death or great bodily injury. Sprocket died 

from septic shock caused by an untreated infection from his 

burns. And a jury could reasonably infer from the prosecution’s 

evidence that Lujan’s acts and omissions contributed to his 

death. 

First, it is undisputed that Lujan deprived Sprocket of 

veterinary care for almost two weeks after he was burned. And 

although Dr. Merck testified that severe burns can be life 
12

threatening, Dr. Merck did not testify that, based on her review 

of the medical records, photographs, and text messages, 

Sprocket’s case was hopeless from the time of his initial burns, 

that he would have necessarily been euthanized if initially 

brought in for veterinary care sooner, or that Souter’s act or 

omissions alone created a high risk of great bodily injury or 

death.3 Rather, Dr. Merck testified about numerous treatment 

options—such as surgical debridement, pain and antianxiety 

medication, intravenous and topical antibiotics, and intravenous 

fluids—that would have been offered to a dog who came in for 

medical attention shortly after being burned. 

Dr. Merck also testified that, while euthanasia may be 

initially considered in severe burn cases, survival depends on 

burn severity, how much of the body is affected, and the animal’s 

general health before the burns were suffered. In contrast, Dr. 

Barchas testified Sprocket had no chance of survival when he 

was brought in (on May 1). 

Second, Dr. Merck also testified that Lujan’s admitted acts 

of “home treatment”—including removing Sprocket’s dead skin, 

touching his burns, bathing him, and applying antiseptic—would 

have all been very painful for Sprocket and contributed to his 

risk of shock, dehydration, and infection (all of which can be 

fatal). Lujan may not have caused the burns, but the jury could 

3 Nor does the evidence conclusively establish that, had 

Lujan brought Sprocket to the vet earlier, she would have (as she 

now asserts) simply euthanized Sprocket because treating him

would have been too expensive given his likely prognosis at the 

time. In 2016, Lujan was both a full-time student and working 

part-time. Her monthly income fluctuated between $800 and 

$1,200. However, Lujan testified that she borrowed $2,000 from 

her mother—to begin treatment on May 1—despite Sprocket’s 

grave prognosis and Dr. Barchas’s recommendation that Sprocket 

be euthanized. 
13

reasonably infer that her acts and omissions made his injuries 

worse and increased the risk he would die. 

Substantial evidence supports the jury’s implicit finding 

that Lujan’s acts or omissions exposed Sprocket to a high risk of 

death or great bodily injury.

B.

Souter contends that his trial counsel provided ineffective 

assistance by stipulating to an element of the offense—that 

Sprocket was in Souter’s care between April 19 and April 24. 

(See § 597, subd. (b) [“whoever, having the charge or custody of 

any animal, either as owner or otherwise, subjects any animal to 

needless suffering, or inflicts unnecessary cruelty upon the 

animal, or in any manner abuses any animal, . . . is, for each 

offense, guilty of a crime”], italics added.) We disagree.

1.

Under both the United States and California Constitutions, 

a criminal defendant has the right to the effective assistance of 

counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-686 

(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215 

(Ledesma).) To establish ineffective assistance of counsel, a 

defendant must show (1) counsel’s performance was so deficient 

that it fell below an objective standard of reasonableness, under 

prevailing professional norms, and (2) the deficient performance 

was prejudicial, rendering the results of the trial unreliable or 

fundamentally unfair. (Strickland, supra, at pp. 688, 692; 

Ledesma, supra, at pp. 216-217.) 

“[W]e begin with the presumption that counsel’s actions fall 

within the broad range of reasonableness, and afford ‘great 

deference to counsel’s tactical decisions.’ ” (People v. Mickel

(2016) 2 Cal.5th 181, 198.) “ ‘ “[[I]f] the record on appeal sheds no 

light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and 
14

failed to provide one, or unless there simply could be no 

satisfactory explanation,” the claim on appeal must be rejected.’ 

[Citations.] A claim of ineffective assistance in such a case is 

more appropriately decided in a habeas corpus proceeding.” 

(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

Generally, prejudice must also be affirmatively 

demonstrated. (Ledesma, supra, 43 Cal.3d at p. 217.) Prejudice 

is shown when there is a reasonable probability that, but for 

counsel’s ineffective representation, the result of the proceeding 

would have been different. (Strickland, supra, 466 U.S. at p. 

694.) A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. (In re Hardy (2007) 41 

Cal.4th 977, 1018.) 

2.

At trial, Souter’s counsel stipulated that “Souter was 

present in San Bruno providing care for Sprocket with [Lujan] 

until about April 24th, 2016, at which time he returned to his 

home in New Mexico.” 

The stipulation was first discussed, during argument on in 

limine motions, when Souter disputed the admissibility of a 

series of texts (between him and Lujan)—specifically texts dated 

April 12, April 14, and April 21. 

On April 21 (after Sprocket had been burned), Souter 

texted Lujan, “ ‘Your fucking dog bit me again when I was trying 

to feed him.’ ” She replied, “ ‘Well babe Athena bit me and you 

both when we were doing that. Spank him.’ ” Souter texted 

back, “ ‘Yeah I did but he keeps drawing blood.’ ” The prosecutor 

argued these texts were relevant because they showed, among 

other things, that Souter was caring for Sprocket—as required 

under section 597, subdivision (b)—after he was burned. 

Souter’s counsel then offered to stipulate that Souter was 

caring for Sprocket up until the time he returned to New Mexico. 
15

Specifically, Souter’s counsel stated: “I don’t think this text is 

necessary to establish that. That’s a fact that’s not really in 

dispute, as far as, you know, a point in time after Sprocket was 

injured. Both Mr. Souter and Miss Lujan both had periods of 

time that they were caring for the dog different periods of time, 

and I think that’s something we can address via stipulation. 

That’s pretty easy to determine.” (Italics added.) Understanding 

that the parties would work out a stipulation, the trial court 

ruled that the three April 21 messages were inadmissible. 

Despite this pretrial ruling, the court later admitted the 

April 21 text messages. Before the text messages in People’s 

Exhibit Six were admitted, Souter’s counsel expressed concern 

that the April 21 messages were included. However, the court 

(mistakenly) expressed its belief that, in ruling on pretrial 

motions, it had only excluded text messages from April 14. The 

prosecutor agreed with the trial court’s understanding and 

Souter’s counsel said, “All right. I’ll accept it.” 

After Hanley concluded her testimony—including reading 

the entirety of People’s Exhibit Six to the jury, Souter’s counsel 

stipulated that “Souter was present in San Bruno providing care 

for Sprocket with [Lujan] until about April 24th, 2016, at which 

time he returned to his home in New Mexico.” 

3.

Souter insists that we cannot defer to his trial counsel’s 

tactical decision to so stipulate because counsel failed to 

successfully exclude the April 21 text messages. We disagree.

Although he does not challenge admission of the April 21 

texts themselves, Souter’s argument is premised on the false 

assumption that the only tactical reason for defense counsel to 

enter the stipulation was to exclude the April 21 messages. But 

his trial counsel also candidly admitted that there was no dispute 
16

that Souter was responsible for Sprocket’s care between the time 

Sprocket was burned and when Souter returned to New Mexico. 

That conclusion is supported by the text messages in 

People’s Exhibit Six and by Lujan’s testimony. Lujan testified 

that Souter was responsible for caring for Sprocket when she was 

in school, which included April 19, April 20, and April 21. And, 

in his messages, Souter admits that he was caring for and

disciplining Sprocket, in the relevant time period, while Lujan 

was absent. Even after Souter returned to New Mexico, the 

messages indicate he was directing the home treatment of 

Sprocket’s burns. Thus, the record supports the People’s 

argument that trial counsel decided to stipulate to the care 

element because it would allow defense counsel to maintain 

credibility with the jury—by not pressing weak arguments. (See 

People v. Farwell (2018) 5 Cal.5th 295, 308 [the decision to 

stipulate is a tactical one which “can serve the salutary goals of 

expediting and simplifying proceedings, thus reducing the chance 

for confusion”].) 

It is not our role to second guess the wisdom of such a 

tactic. (People v. Kelly (1992) 1 Cal.4th 495, 520.) Here, the 

tactic may well have been successful—as the jury failed to reach 

a verdict on count one (purposeful and malicious animal cruelty). 

And our high court has repeatedly rejected similar ineffective 

assistance claims based on a defense counsel’s decision to concede 

elements of a crime or even guilt altogether. (People v. Freeman 

(1994) 8 Cal.4th 450, 498; People v. Mitcham (1992) 1 Cal.4th 

1027, 1060-1061 [“good trial tactics often demand complete 

candor with the jury, and . . . in light of the weight of the 

evidence incriminating a defendant, an attorney may be more 

realistic and effective by avoiding sweeping declarations of his or 

her client’s innocence”].) Souter cannot meet his burden to show 

affirmative evidence that no rational tactical purpose supported 

defense counsel’s stipulation decision. 
17

In any event, Souter cannot demonstrate prejudice because 

the text messages (and Lujan’s testimony) showed 

overwhelmingly that Souter was responsible for Sprocket’s care 

between April 19 and April 24.

4.

In his opening brief, Souter also suggests (obliquely and 

without citation to authority) that defense counsel provided 

ineffective assistance by failing to argue that the word “charge” 

in section 597, subdivision (b), means something more than 

“care.” In Souter’s view, a caregiver must also take financial 

responsibility for an animal or have ultimate decision-making 

authority to have the animal in their charge. We need not 

address this forfeited argument. (See Cal. Rules of Court, rules 

8.204(a)(1)(B) & 8.360(a); People v. Stanley (1995) 10 Cal.4th 764, 

793 [reviewing courts may disregard points missing cogent legal 

argument]; Julian v. Hartford Underwriters Ins. Co. (2005) 35 

Cal.4th 747, 761, fn. 4, [arguments raised for the first time in 

reply brief are forfeited].) 

In any event, Souter’s belatedly raised argument is without 

merit. The plain meaning of “having the charge” in this context 

is having supervision or caregiving responsibility. (MerriamWebster’s Online Dict. at https://www.merriamwebster.com/dictionary/charge [noun definitions 3a and 3b, as of 

April 6, 2023].) And, by using the phrase “whoever, having the 

charge or custody of any animal, either as owner or otherwise,” 

the Legislature made clear that, contrary to Souter’s assertion, it 

did not wish to limit criminal liability to those with financial 

responsibility for an animal. (§ 597, subd. (b), italics added; cf. 

People v. Cochran (1998) 62 Cal.App.4th 826, 832 [having “ ‘care 

or custody’ [of a child (as required by section 273a) does] not 

imply a familial relationship but only a willingness to assume 

duties correspondent to the role of a caregiver”].) 
18

C.

Souter also argues that his trial counsel was ineffective in 

failing to raise a hearsay objection to portions of Hanley’s 

testimony. We conclude that defense counsel had a reasonable 

tactical reason not to object and that Souter cannot show 

prejudice.

1.

During the prosecutor’s direct examination and Lujan’s 

cross examination, Hanley repeatedly testified (without objection 

from Souter’s counsel) that (with one exception) all the veterinary 

clinics contacted by Hanley and another investigator said that 

they did not recall a call about a burned dog and that they would 

not advise the owner of a burned dog (over the phone) to treat the 

dog at home without seeing a veterinarian. With respect to the 

exception, Hanley testified that Heather P. “recalled a man, who 

she described in his early to mid 20s, calling in describing an 

accidental burn, and she told him that the dog needed to be 

brought in immediately.” 

The recordings of Hanley’s second and third interviews of 

Lujan include similar statements (made by Hanley)—that all the 

contacted veterinary offices said that they would advise a pet 

owner to immediately bring in a burned dog and would not give 

medical advice over the phone. 

2.

We assume (without deciding) that a hearsay objection 

would have properly been sustained. Nonetheless, we agree with 

the People that Souter cannot meet his burden to show there 

could be no rational tactical purpose for counsel’s failure to 

object. 
19

“Competent counsel may forgo even a valid objection for 

tactical reasons.” (People v. Campbell (2020) 51 Cal.App.5th 463, 

506; accord, People v. Carrasco (2014) 59 Cal.4th 924, 985.) 

Here, the record suggests that Souter’s counsel may have 

reasonably elected to withhold objections to Hanley’s recitation of 

others’ out of court statements because it was less damaging than 

live witness testimony to the same effect. (See People v. 

Campbell, supra, 51 Cal.App.5th at p. 506.) Remember that the 

substance of this evidence (regardless of its source) contradicts 

Souter’s prior statement to Hanley—that none of the veterinary 

clinics he contacted told him Sprocket needed to be seen by a vet. 

Thus, Souter’s defense counsel may have rationally concluded 

that the hearsay evidence was less damaging to Souter’s 

credibility. 

Souter offers no response to the People’s argument on this 

point. Having failed to rebut the presumption that his trial 

counsel elected not to object for a rational tactical reason, Souter 

fails to establish ineffective assistance of counsel.

In any event, Souter also fails to carry his burden to 

demonstrate prejudice. Hanley’s testimony regarding the results 

of her calls to other veterinary clinics was largely cumulative. 

Both Heather P. and another veterinary clinic’s customer service 

representative testified that they are trained to refrain from 

giving medical advice over the phone. Heather P. testified that 

she specifically remembered the April 2016 phone call and that 

she told the male caller burns were easily infected and required 

immediate veterinary care. And one of Souter’s own text 

messages stated that “ ‘all vet[s] do is tell you to bring them in.’ ” 

On this record, it is not reasonably probable Souter would 

have achieved a more favorable result but for trial counsel’s 

failure to object. 
20

D. 

Next, both Souter and Lujan insist that the trial court 

erred by admitting an inadmissible legal conclusion from Dr. 

Barchas. We conclude any error was harmless.

1.

Prior to trial, Souter and Lujan moved to exclude testimony 

expressing opinions on their guilt, on whether a crime had been 

committed, or on the definitions of the charged crimes. Although 

the trial court agreed that opinions on guilt or innocence were 

inadmissible, the trial court denied the motion (without 

prejudice) as insufficiently specific. It admonished defendants’ 

counsel to object if or when an objectionable question was posed. 

During cross-examination of Sprocket’s treating 

veterinarian, Lujan’s counsel asked Dr. Barchas if Lujan’s 

demeanor caused him to delay his report of suspected animal 

cruelty. Dr. Barchas answered, “The reason I reported the 

incident is because she told me that it had been a week since the 

injuries were sustained and that was compatible with what I was 

seeing on my patient, and I considered that to be gross negligence 

and animal abuse to let an animal suffer in extreme agony for a 

week without seeking veterinary care.” (Italics added.) At this 

point, Souter’s counsel objected (without identifying grounds for 

his objection) and moved to strike Dr. Barchas’s testimony. The 

trial court overruled the objection. 

2.

We assume (without deciding) that the motion in limine 

and Souter’s unidentified objection were sufficient to preserve 

both defendants’ current challenge to Dr. Barchas’s testimony.

We also assume (for the sake of argument) that Souter and 

Lujan are correct that the trial court abused its discretion in 

allowing Dr. Barchas to invade the jury’s province—by opining on 
21

the ultimate question of whether Lujan’s (and implicitly Souter’s) 

failure to obtain earlier veterinary care was grossly negligent. 

Nonetheless, we conclude any error was harmless. 

The evidence overwhelmingly supports a finding that both 

Souter and Lujan were grossly negligent in failing to obtain 

veterinary care for Sprocket and instead subjecting him to home 

treatment. With respect to Souter, the photograph he took of 

Sprocket’s burned skin, on April 19, demonstrates that Sprocket 

was seriously injured. Souter also admitted (in the text messages 

he sent that day) knowing as much. And Souter admitted in his 

text messages that he knew, before leaving on April 24, Sprocket 

was in pain, had lost a lot of weight, and was lethargic. Lujan 

also admitted knowing as much then and through May 1. 

In yet another text message, Souter admitted that “ ‘all 

vet[s] do is tell you to bring them in.’ ” This, of course, jibes with 

veterinary technician Heather P.’s testimony that she advised a 

caller—presumably Souter—that a vet should examine the dog, 

that burns are easily infected, and that the dog should not be 

treated at home. Considering Souter’s texts, Heather P.’s 

testimony, and Lujan’s statements about the advice he received 

on April 19, the evidence was overwhelming that Souter knew 

Sprocket needed to be examined by a veterinarian but later lied 

about it. Lujan’s text messages and statements to Hanley show 

that Lujan also knew that Sprocket needed veterinary care before 

he received it and that her inaction made things worse. 

The crux of the defense theory was that Souter and Lujan 

mistakenly but reasonably believed Sprocket was healing and 

that Sprocket was not in pain. Even if we acknowledge that 

there is some evidence to support defendants’ claim that they 

subjectively believed (between April 19 and April 31) that 

Sprocket was healing on his own, without veterinary care, that 

does not make this a close case. The jury was correctly instructed 

that the required mental state for a violation of section 597, 
22

subdivision (b), is gross negligence, which is judged by an 

objective standard of reasonableness. (People v. Speegle (1997) 53 

Cal.App.4th 1405, 1411.) The defendant’s conduct “must be such 

a gross departure from the reasonably prudent that it amounts to 

reckless indifference with actual or imputed knowledge of the 

consequences.” (Id. at pp. 1414-1415, fn. 7.)

The defense theory is not credible considering the text 

messages and photographs showing defendants’ awareness of 

Sprocket’s serious injuries (as well as his lethargic and weak 

condition) both before and after April 24, along with the evidence 

showing their knowledge that veterinary care was needed for 

such serious injuries. Consideration of the record as a whole 

leads inescapably to the conclusion that it was grossly negligent 

to fail to take Sprocket to the vet—despite his obviously serious 

injuries and deteriorating condition—and to instead bathe him, 

pop his blisters, and cut off his skin to reveal “ ‘raw open 

wound[s].’ ” 

On this record, defendants cannot demonstrate prejudice by 

pointing to the length of jury deliberations (three days) and 

request for a readback of testimony. (See People v. Johnson

(2015) 61 Cal.4th 734, 752-753; People v. Houston (2005) 130 

Cal.App.4th 279, 301 [four days of jury deliberations and 

requests for read back of witness testimony demonstrated only 

jury’s diligence].) On the question of defendants’ gross 

negligence, this was not a close case. It is not reasonably 

probable that, had Dr. Barchas’s isolated comment been 

excluded, a juror would have found reasonable doubt existed as to 

defendants’ gross negligence. 

E.

Next, Souter and Lujan argue, and the People concede, that 

we must strike their probation supervision fees (up to $100 per 

month) pursuant to the enactment of Assembly Bill No. 1869 

((2019-2020 Reg. Sess.), Stats. 2020, ch. 92). We agree. 
23

After Lujan’s and Souter’s sentencing hearing, Assembly 

Bill No. 1869 repealed the statute, as of July 1, 2021, that 

authorized collection of the probation supervision fee and a fee for 

“processing a jurisdictional transfer pursuant to Section 1203.9” 

(former § 1203.1b, subd. (a), as amended by Stats. 2014, ch. 468, § 

1). (Stats. 2020, ch. 92, § 47; People v. Clark (2021) 67 

Cal.App.5th 248, 252.) The Legislature also enacted section 

1465.9, which provides that the balance of any costs imposed by a 

court “pursuant to Section . . . 1203.1b . . . as [that] section[] read 

on June 30, 2021, shall be unenforceable and uncollectible and 

any portion of a judgment imposing those costs shall be vacated.” 

(§ 1465.9, subd. (a), italics added.) Accordingly, we are required 

to strike the monthly probation supervision fee. (Ibid.; People v. 

Lopez-Vinck (2021) 68 Cal.App.5th 945, 953-954, & fn. 8; Clark, 

supra, at pp. 259-260.)

We agree with Souter that we must also strike a 

jurisdictional transfer fee ($600), which was imposed pursuant to 

former sections 1203.1b and 1203.9 and subsequently eliminated 

by the passage of both Assembly Bill No. 1869 and Assembly Bill 

No. 177. (§ 1465.9, subd. (b), as amended by Stats 2021, ch. 257, 

§ 35 [“On and after January 1, 2022 the balance of any courtimposed costs pursuant to Section . . . 1203.9 . . . , as [it] read on 

December 31, 2021, shall be unenforceable and uncollectible and 

any portion of a judgment imposing those costs shall be vacated”], 

italics added.) 

Because the plain language of section 1465.9 compels it, we 

also direct the trial court to strike the probation transfer fee 

imposed under former sections 1203.1b and 1203.9. (§ 1465.9, 

subds. (a)-(b); cf. People v. Greeley (2021) 70 Cal.App.5th 609, 

625-627; People v. Clark, supra, 67 Cal.App.5th at pp. 259-260.)
24

F.

Lujan also argues that the written probation order must be 

modified to reflect only the probations conditions orally 

pronounced by the trial court. However, the parties now agree 

this issue is moot because Lujan’s probation has terminated. We 

do not address the matter further because it is moot. (People v. 

Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5.)

DISPOSITION 

The orders of probation are modified to strike the probation 

supervision fee and the probation transfer fee. As so modified, 

the judgments are affirmed.
25

______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J. 

____________________________

LANGHORNE, J.*

A161941/A162047

* Judge of the Napa County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California

Constitution.