People v. Chaney
| Decision Date | 31 October 2019 |
| Docket Number | E069979 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DENISE SHARON CHANEY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. ) Affirmed in part; reversed in part with directions.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Denise Sharon Chaney guilty of committing an assault with a deadly weapon, making criminal threats, and misdemeanor child endangerment arising from an argument and physical fight with her daughter (D.) while her five-year-old granddaughter (Z.) was present in the apartment. The trial court sentenced defendant to nine years in state prison for the felony offenses and 180 days in county jail to run concurrently for the misdemeanor offense.
Defendant argues: (1) the trial court had a sua sponte duty to instruct the jury on self-defense, and her appointed attorney rendered ineffective assistance of counsel by not requesting one; (2) there is no substantial evidence to support her conviction for misdemeanor child endangerment because the People did not prove she endangered Z.'s person or health; (3) the trial court's true finding that defendant suffered a strike conviction and a prior serious felony offense is not supported by substantial evidence, the trial court engaged in improper judicial factfinding when determining defendant suffered a strike prior, and her waiver of a jury trial on the prior conviction allegation was not freely and voluntarily made because she did not waive her right to be free from such improper judicial factfinding; (4) the trial court erred by not staying the sentence on her criminal threats conviction because she had the same intent and objective for both felony offenses; and (5) remand is necessary to allow the trial court to consider whether to strike a five-year prior serious felony sentence enhancement.
We agree defendant's conviction for misdemeanor child endangerment must be reversed for insufficient evidence, and we remand for the trial court to (1) make factual findings and determine whether the sentence on defendant's conviction for criminalthreats should be stayed, and (2) determine whether to exercise its discretion to strike the five-year prior serious felony enhancement. In all other respects, we affirm.
I.
PROCEDURAL BACKGROUND
The People charged defendant with one count of assault with a deadly weapon (a knife) upon her daughter D. (Pen. Code,1 § 245, subd. (a)(1), count 1), one count of making criminal threats to D. (§ 422, count 2), and one count of child endangerment of her granddaughter Z. (§ 273a, subd. (a), count 3). The People also alleged defendant personally used a deadly weapon during the commission of count 2. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) Finally, the People alleged defendant suffered a prior strike conviction in 1997 for "assault with weapon causing great bodily injury" (GBI) (§ 245, subd. (a)(1)), which qualified as a serious and violent felony strike (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and a serious prior felony offense (§ 667, subd. (a)).
Before trial, the trial court denied defendant's request pursuant to Romero2 to strike her prior serious and violent felony conviction. A jury found defendant guilty as charged in counts 1 and 2, acquitted her of felony child endangerment as charged in count 3, but found her guilty on count 3 of the lesser included offense of misdemeanor child endangerment. The jury also rendered a true finding that defendant personally useda deadly weapon during the commission of count 2. And, in a bifurcated proceeding, the trial court found true the prior conviction allegations.
Defendant was sentenced to state prison for a total term of nine years and 180 days in county jail to run concurrently. Defendant timely appealed.
II.
FACTS
D. lived in Desert Hot Springs, in an apartment with her then five-year-old daughter Z., Z.'s father, and defendant. At the time of the incident, D.'s relationship with defendant was a struggle, and the two had previously engaged in verbal arguments and physical fights. D. testified that when she fought with her mother in the past, D. was the one who usually "started the physical part."
On April 9, 2017, D. and defendant got into an argument in the kitchen about Z.'s father. Z. was in the living room at the time. The argument escalated to the point where D. and defendant were yelling at each other. And, when D. walked toward the living room, defendant followed her. D. and defendant were "face-to-face," exchanging insults. Defendant was cursing and calling D. names in front of Z., and D. asked her to stop at least three times. D. pushed defendant's face away with her open hand, causingdefendant to stumble and fall.3 D. did not feel threatened by defendant, but she was angry and did not "know what else to do" to stop the argument.
As to the current matter, D. testified she did not "go after" defendant after she fell. However, defendant went for her purse and said, D. ran to her bedroom because she "kind of knew" defendant was getting a knife from her purse. When asked how she knew this, D. testified, "you've got to know [my] mom." D. added that defendant "mostly lived on the street" and "carries things in her purse to protect her[self]." Defendant had never pulled a knife on D. before. Z. was still in the living room. D. ran toward her room, defendant followed, and the two struggled over the knife.4 They fell to the floor, with defendant on top of D. Defendant held the knife with the blade pointed down. The two were yelling at each other during the struggle, and D. held defendant's wrist "so that she couldn't move her wrist towards me." D. was screaming for help and pleading with defendant to get off of her because she could not breathe. Before defendant got off of D., she switched the knife from one hand to the other and said, During the struggle, D. heard Z. in the living room screaming and crying. When defendant finally got off of her, D. ran to the living room, grabbed Z., ran outside to her car, called 911, and drove to a nearby restaurant. D.testified Z. was scared during the incident and, later, Z. said that "she didn't want nana to cut her."
Police officers and paramedics arrived at the restaurant. D. had a lot of blood on her, but she only had a minor laceration to her wrist. D. believed the rest of the blood may have come from defendant, who had cut her foot the day before. D. was crying and shaking as she spoke to the police officers. After taking her statement, the officers escorted D. back to the apartment. Defendant was no longer there, and the officers were unable to find the knife.
Prior to the April 2017 incident, defendant and D. had one previous physical altercation during which D. hit defendant with a closed fist, and defendant called the police. On April 9, defendant and D. got into an argument about food stamps and Z.'s father. Defendant and D. were exchanging insults in the dining room, and D. told defendant "to get out." When defendant "brought up the stuff that [Z.'s father] had done to [D.] in the past," D. "got mad" and "hit [defendant] with a closed fist." The punch surprised defendant, and she stumbled and fell. Defendant got up, grabbed her duffle bag, and reached inside for her keys.5 Defendant had a "little knife gadget" attached to her keys. The entire knife was three to five inches long.
Defendant denied that she chased D. into her bedroom or that she lunged at D. Instead, defendant testified she went to gather her toiletries from the bathroom, but sheand D. were still arguing in the hallway when D. "went to push me and we fell, and I ended up being on top." On her way to the bathroom, defendant walked by Z., who was still in the living room. Defendant testified she pulled the knife out because she was scared. She had the knife in her right hand as she was on top of D., but she did not threaten D. with the knife. Defendant testified she did not jab the knife at D. "or anything like that." Instead, D. was holding defendant's right wrist, so defendant switched the knife to her left hand because her right wrist was hurting. D. did not grab defendant's left wrist. Defendant denied that she said, "Look how easy I can do it?" She did not cut D., and the blood on D. and in the bedroom came from an earlier injury defendant had suffered when she dropped a cooking knife on her left foot.
When the altercation was over, D. left the apartment with Z. Defendant then gathered her things and left. She saw the police drive by the apartment but did not flag them down to tell them she had been hit, and she did not contact the police about the incident. Defendant saw D. a couple times before she was arrested. She also spoke to D. six or seven times while in jail awaiting trial. Defendant's friend and D. paid for the phone calls.
III.
DISCUSSION
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