ANIMAL CRUELTY CASE TO BE SENT BACK FOR SENTENCING JUDGE NEEDED TO DEAL WITH MISDEMEANORS.

Byline: Karen Maeshiro Staff Writer

LANCASTER - A 74-year-old retired school cafeteria manager convicted of animal cruelty for keeping more than 200 Chihuahuas at her home must return to court once more.

An appeals court has ruled that the judge should have imposed a sentence for four misdemeanor counts on which Emma Harter was convicted.

``She was convicted on one felony. That stands. She got probation on that,'' Deputy Attorney General Sharlene Honnaka said. ``On the misdemeanor counts, the judge did not give her a sentence. A judge is required to say some kind of sentence - she can say probation or whatever. She is required to give some kind of sentence on it.''

Harter was convicted in March 2004 of one count of felony animal cruelty and four misdemeanor counts: battery on an animal-control officer, animal endangering, unsanitary conditions and failure to isolate sick animals.

Harter was placed on probation for five years for the felony count and barred from owning or possessing animals during that period. She also was ordered to pay $371,090 in restitution to Los Angeles County.

The order from the 2nd District Court of Appeal to send the case back for sentencing stemmed from Harter's appeal of her conviction, which focused on the legality of a search of her home that resulted in the seizure of the animals and cited inadequacy of counsel for not renewing at trial a motion to suppress evidence based on what she claimed was an illegal search.

The three-judge appellate panel declined to rule on the merits of Harter's arguments, saying those issues would be better addressed through a petition for a writ of habeas corpus, which would allow Harter's attorney to explain why the motion was not renewed, rather than through a direct appeal.

The ruling also concluded that the case must be sent back to the trial court for imposition of sentence on the misdemeanor counts.

At the time of sentencing, according to the appeals court's ruling, Antelope Valley Superior Court Judge Lisa Chung told Harter, ``I do not see any point in having you on misdemeanor probation, since you are already on felony probation. ... However, the court is not going to impose any other conditions or fines, and I am going to indicate no probation, so you have one probation to worry about on Count 1, and that's felony probation.''

``Upon conviction, it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. Pursuant to this duty, the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion,'' the appeals court ruling said.

``We express no opinion on how the trial court should exercise its sentencing discretion,'' the ruling added.

Karen Maeshiro, [phone]

karen.maeshiro(at)dailynews.com