People v. Conrady
| Decision Date | 04 January 2023 |
| Docket Number | B322516,B322531 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CHANISH CONRADY, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. STEVE REA PEREZ, JR., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Merced County No. 18CR-06159, Carol K. Ash, Judge. Convictions affirmed sentence vacated, and remanded with directions as to Steve Rea Perez, Jr. Affirmed in part and reversed in part remanded with directions as to Chanish Conrady.
Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant Chanish Conrady.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Steve Rea Perez, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Four-year-old Kyis Conrady (Kyis) died while in the care of his mother, Chanish Conrady (Chanish), and Chanish's boyfriend, Steve Rea Perez, Jr. The jury found Perez guilty of assault on a child causing death (Pen. Code, § 273ab, subd. (a);[1]count 1) and felony child abuse (§ 273a, subd. (a); count 4). The same jury found Chanish guilty of three counts of felony child abuse for having care or custody of Kyis and willfully permitting Kyis to be injured (§ 273a, subd. (a); counts 2-4).
On appeal, Perez contends the trial court abused its discretion in admitting Kyis's statement that Perez had hit him and an autopsy photograph of Kyis. Perez also argues the trial court erred in providing erroneous and incomplete jury instructions for felony child abuse and improperly instructing on the lesser included offense of assault on a child causing death. In addition, Perez asserts the trial court abused its discretion by failing to declare a mistrial after the jury deadlocked and by subsequently discharging a juror without determining whether there was good cause to dismiss the juror. Further, both Perez and Chanish contend there was not substantial evidence to support their convictions. Chanish also challenges her sentence, arguing the trial court violated section 654 by failing to stay two of her three felony child abuse convictions because they arose from a single course of conduct.
In addition, in his supplemental brief Perez contends, the People concede, and we agree, that because the trial court selected the upper term on count 4, he is entitled to resentencing pursuant to the amendments to section 1170, subdivision (b), made by Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567), which apply to all cases not yet final as of the legislation's January 1, 2022 effective date.
We affirm Perez's convictions. We reverse Chanish's felony child abuse conviction on count 4 and otherwise affirm. We remand for resentencing as to Perez and Chanish consistent with the amendments to section 1170, subdivision (b).
In 2013 17-year-old Chanish became pregnant after dating 19-year-old Kyle Conrady (Kyle). The couple moved in together, and Chanish gave birth to Kyis in May 2014. Chanish and Kyle married in 2016 but separated a year later.
After the separation, Kyle dated Naomi Lartigue and moved to Sacramento with Lartigue and her daughter Lydia in early 2018. Chanish dated Perez and moved with him to the city of Dos Palos in mid-2018. Chanish and Kyle had an informal custody agreement under which Chanish had custody of Kyis on weekdays and Kyle had custody on weekends.
On Saturday, September 8, 2018, Kyle and four-year-old Kyis attended Lydia's birthday party, which was held by a river. Kyle watched over Kyis during the entire time they were at the party. After they came home, Kyle helped Kyis undress for a bath because Kyis's clothes were wet. When Kyle started pulling down Kyis's pants, Kyis said "'[o]w.'" Kyle noticed "a large bruise on [Kyis's] groin area." Kyle testified he asked Kyis "what had happened," and Kyis replied, "'Steve had punched me in the night.'" Kyle observed Kyis became nervous and did not want Kyle to leave his side. Kyle went to the kitchen and told Lartigue to take a look at Kyis. Lartigue heard Kyis crying and went into the bathroom. She saw a "blue and kind of purple-ish" bruise on Kyis's groin area.[2] Lartigue testified Kyis "was actually kind of scared and nervous to tell" Kyle and her that Perez "had went in his room at night and had punched him in his groin."
Kyle called Chanish and asked why Kyis had a bruise on his groin area. Chanish became upset and responded she did not know what Kyle was talking about. She asked Kyle to bring Kyis back to her home.[3] Kyle refused, and Chanish threatened to call the police if Kyle did not bring Kyis back. Kyle told Chanish "to go ahead and call the police, but [he] wasn't going to bring [Kyis] back." The next day officers from the Sacramento Police Department came to Kyle's home to perform a welfare check of Kyis. They instructed Kyle to bring Kyis to the Dos Palos Police Department on Monday, September 10.
At the Dos Palos police station, Dos Palos Police Officers Emeterio Cuevas and Battles and child protective services (CPS) social worker Antonio Ruezga interviewed Kyle and Kyis. Kyle said Kyis had an injury to his groin area, and he showed a photograph of the injury to the officers and Ruezga. Officer Battles then asked Kyis what had happened. Kyle testified he was present for Kyis's interview because Kyis "wasn't comfortable doing the interview by himself." Kyle told Kyis to tell Officer Battles what Kyis had told Kyle two days earlier. Kyis responded that "'Steve hit me.'" However, Kyis did not give any details or answer Officer Battles's follow-up questions about where, when, and how it happened. Officer Battles asked Kyle whether Perez had hit him in the past, and Kyle responded no. When asked whether he was afraid of Perez, Kyle said he was not. During the interview, Ruezga asked Kyis about school, and Kyis responded that Perez had hit him. Ruezga testified he found it odd because he did not ask Kyis if he got hurt. After the interview, a five-day emergency protective order was issued against Chanish and Perez, and Kyis returned with Kyle to Sacramento.
Ruezga and the officers interviewed Chanish, Perez, Perez's son and daughter, and Perez's ex-girlfriend, Christian Quiroz. At the conclusion of the investigation, Ruezga and the officers found the abuse allegation was inconclusive, and they decided not to detain Kyis.
After the emergency protective order expired, Kyle and Chanish formalized their custody arrangement. They agreed Kyis would reside with Chanish on weekdays to attend preschool and with Kyle on weekends. The parents further agreed Kyis would not be alone with either Lartigue or Perez.
On Friday, October 12, 2018 Perez dropped off Kyis at his preschool. Perez informed Kyis's teacher, Melissa Harrelson, that a bug had bitten Kyis, causing a bump on the left side of Kyis's face. Harrelson did not see a bump on Kyis's face, but she told Perez she would "keep an eye on it."
Later that evening Kyle picked up Kyis from Chanish for the weekend and noticed a minor scratch and swelling near Kyis's left eye. Lartigue, who went with Kyle to pick up Kyis, testified she noticed a bump close to one of Kyis's eyes. Chanish told Kyle during the pickup that Kyis had been hit with a toy fire truck at school.[4] Kyis similarly told Kyle later that a child at his school had thrown a truck at him. That weekend, Kyle took Kyis to San Jose to visit his parents. Lartigue testified that during the weekend the bump near Kyis's eye started to swell. However, Kyle put ice on the injury, and the swelling went down by the time he returned Kyis to Chanish at the end of the weekend.
Kyle testified that on Sunday, October 14, on the drive back to Chanish's home in Dos Palos, Kyis threw a tantrum in his booster seat and "just refused to go back to his mom." Kyis banged his head and tried to get out of his seat. According to Kyle, Kyis had been having tantrums throughout October, and this incident "was a little bit greater than the ones prior."[5] Kyle believed Kyis had tantrums because of the constant changes in Kyis's life, including multiple moves and changes in the people in his life, including Perez and Lartigue. Chanish told Kyle she believed Kyis might have autism or Asperger's syndrome.[6]
Harrelson testified that when Kyis returned to preschool on Monday, October 15, Kyis "might have [had] a little bit of bruising" and discoloration on the left side of his face, but otherwise he "looked normal." Chanish told Harrelson that Kyis said a student had thrown a toy at him. Kyis similarly told Harrelson a child had thrown a truck at him inside the classroom. But about an hour later Kyis told Harrelson a different story-that a child of the opposite gender had hit him with a toy outside the classroom.
Kyis did not attend school on October 16 and 17. Chanish told Harrelson she had taken Kyis to the hospital because Kyis's "eye had swelled up to the point where he was having trouble with his vision." On October 17 Officer Cuevas and Ruezga went to the hospital to investigate abuse allegations. Officer Cuevas observed the left side of Kyis's face was swollen and "smooshy," and "one of his eyes was swollen."[7] Chanish stated in Kyis's presence that a student had thrown a toy truck at Kyis's head and caused his injuries. Officer Cuevas asked Kyis what had happened to his face,...
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