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Nobody likes a dog killer. Three years ago, everyone from Oprah Winfrey to Good Morning America condemned Andrew Burnett, the San Jose man who reacted to a fender bender by throwing a bichon frisé named Leo into traffic. On Tuesday, the Sixth District Court of Appeal had its turn at the poster boy for road rage. In a published opinion affirming Burnett’s animal cruelty conviction and three-year prison sentence, Justice Eugene Premo seemed to go out of his way to express outrage at the crime, as well as Burnett’s claims on appeal. That didn’t surprise Troy Benson, the Santa Clara County deputy district attorney who tried the case. “His actions were so outrageous and the defense even more outrageous,” he said. “Even from reading it, it appears no one was buying Mr. Burnett’s defense.” That included the claim that the dog’s death wasn’t a “cruel” killing. Premo also rejected as “absurd” Burnett’s argument that Leo contributed to his own death by running back into traffic moments after he was flung to the pavement. In fact, Premo wrote in People v. Burnett, 03 C.D.O.S. 6450, “Leo was stunned, terrified and confused by being thrown to the ground. He was reacting to fright by running.” Burnett’s court-appointed lawyer, Arthur Dudley, said Tuesday he wasn’t trying to blame the victim. “I don’t blame Leo. I never really said that,” Dudley said. But, he said, the jury should have been instructed on superseding, intervening causation. “When the dog was placed in the street by Mr. Burnett, there were no oncoming cars at that time,” Dudley said. “The jury was not given the opportunity to make that determination.” The incident occurred on a rainy evening in February 2000, when Leo’s owner, Sara McBurnett, was on her way to the San Jose airport to pick up her husband. She tapped the bumper of Burnett’s SUV while changing lanes. Burnett got out of his car, came up to her window and, in Premo’s words, “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.” In appealing the conviction, Dudley, of Santa Cruz’s Page Salisbury & Dudley, also argued that Santa Clara Superior Court Judge Kevin Murphy gave the jury flawed instructions, and that his trial counsel was ineffective. Premo, who was joined by Justices Conrad Rushing and Franklin Elia, concluded that Burnett’s lawyer used his “professional discretion” in deciding not to call Burnett to the stand after telling the jury he would. Burnett was expected to testify that he flung Leo out of the car because the dog had chomped down on his hand. But then Judge Murphy ruled that if Burnett testified, he would allow into evidence that Burnett had killed a stray dog years earlier. “It’s not the defense counsel’s fault that defendant lied to him,” Premo wrote.

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