Burnett

Incensed that the driver behind him tapped his car with her bumper, defendant Andrew Douglas Burnett, snatched her little white dog Leo out of her car and threw him onto a crowded roadway, where he was run over by a minivan and killed. Defendant was convicted of animal cruelty and received three years in state prison. On appeal, he challenges the sufficiency of the evidence, the instructions, and the competence of counsel.

FACTS

Shortly before 8:00 p.m. on February 11, 2000, Sara McBurnett was driving her 1997 Subaru Legacy northbound on Airport Boulevard to the San Jose Airport. Her 19-pound Bichon Frise Leo was asleep on the front seat. It was raining heavily and traffic was congested. Near the intersection with Airport Parkway, defendant, driving his black SUV with Virginia license plates, passed McBurnett very rapidly on the right shoulder, cut in front of her and into the lane to her left in front of another car. McBurnett needed to move over herself to avoid having to make a right turn, and when the driver behind defendant left room for her, she changed lanes behind defendant. The back end of McBumett’s car was still in the lane she was leaving, so she “inched…