Opinion
A102156.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. DEBBIE ELIZABETH BOW, Defendant and Appellant.
Debbie Bow appeals from the revocation of her probation and her commitment to state prison. Appellants court appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
In August 2000, the court suspended imposition of sentence, placing appellant on probation for a period of five years for assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).
In September 2002, the court granted the prosecutions motion to summarily revoke appellants probation based on the allegation that she again committed an assault.
At the conclusion of an evidentiary hearing, the court found appellant in violation of the terms of her probation.
The court permanently revoked appellants probation by sentencing her to the middle term of three years in state prison for assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The court granted appellant 464 days total presentence credit and ordered her to pay a $200 restitution fine.
Prosecution Case
On September 23, 2002, 21-year-old Donald Parks lived in the downstairs apartment at 1337 64th Avenue in Oakland. Appellant lived in the upstairs apartment with Norris Carpenter and her five children, including her daughter Shamilia Smart. Although they were not a couple on the date of the incident, Parks had been dating Smart for about two years, and the two were still emotionally involved. A couple of days before the incident, Parks and Smart began arguing about Parks entertaining women at his apartment, and the argument escalated into an egg fight. Carpenter believed that Parks had called Carpenters children some names during this altercation.
On the night of the incident, Parks, after having a couple of drinks, went to appellants and Carpenters apartment to straighten thing things out with Carpenter. The discussion degenerated into an argument between Parks, Carpenter, Smart and appellant. Appellant accused Parks of stealing some of her jewelry and not paying some bills. Eventually, Carpenter and Parks decided to continue their conversation while leaving the apartment and walking to a store.
Parks bought a pint of vodka and then walked back to the apartment building with Carpenter. When the two men returned home, they stood outside the apartment building and continued to talk for a couple of minutes. Parks saw Smart and appellant standing near the top of the staircase that ran between the outside of appellants and Parkss apartments. Appellant threw her shoes at Parks, and he responded by throwing a full can of soda in the direction of appellant and Smart. Carpenter was angered, and he and Parks began yelling at each other. Smart then came down the staircase and struck Parks twice with her fists. Parks fought back striking Smart in the eye.
When Parks started fighting with Smart, he heard appellant coming down the stairs to join in the fray. Just before she came down the staircase, Parks saw appellant holding a steak knife in one hand and a pair of scissors in the other. When appellant reached Parks and Smart, all three began fighting. Parks tried to run but was stabbed in the side and fell to the ground. Smart kicked Parks in the eye, and he covered his head and closed his eyes to protect his face. Appellant went to the ground with Parks, and all three combatants continued to struggle. During the course of the fight, Parks was cut across his nose and the back of his neck. The cut across Parkss nose required six stitches, and he was hospitalized for a night due to the injuries inflicted during the fight.
At hearing, Parks testified he did not see which one of the two woman cut and stabbed him. He did recall he told the police on the evening of the incident that it was appellant who inflicted the wounds.
Defense Case
Norris Carpenter testified Parks is his nephew and that he had known his nephew for 15 years. On the evening of the incident, when Parks came to appellants apartment, he was intoxicated. When Carpenter accompanied Parks to the store, he saw Parks buy a pint of vodka and watched him drink about a quarter of the bottle as the two men walked home.
When the two men reached their apartment building, appellant was sitting on the porch outside her apartment. Parks made a disparaging remark to appellant, and Carpenter asked Parks to just move his car so appellant and Smart could leave. Parks responded, "`Fuck those bitches" and started moving toward the staircase leading to appellant and Smart. Carpenter tried to restrain Parks and at the same time pushed appellant and Smart back up the staircase. Calm was momentarily restored, and appellant was half way up the staircase when she turned around and accused Parks of stealing her jewelry. Smart then threw a shoe at Parks, and he responded by throwing a plastic bottle of cranberry juice at appellant.
Smart rushed Parks saying, "`Dont be throwing nothing at mama," and Parks struck her hard on the side of her jaw with a beer bottle. The blow staggered Smart, but she managed to spin around and regain her balance in time to strike Parks between the eyes. Carpenter could see blood coming from Parkss face.
Appellant then ran down the stairs screaming, "`My baby, let me get my baby." As she descended the stairs, appellant held a telephone in her hand. Carpenter never saw her holding a knife or scissors. He did see her briefly join in the scuffle with Parks and then retreat into her apartment with her daughter.
Appellant testified she ran down the stairs when she saw Parks apparently attempting to strike her daughter with a bottle. As soon as she was able to grab Smart, Parks punched appellant in the mouth, knocking her to the ground. Appellant bounced back up, grabbed her daughter and ran upstairs to her apartment. She did not remember striking Parks in any fashion.
Substantial evidence supports the courts finding that appellant violated the terms of her probation.
Appellant was represented by counsel throughout the proceedings.
Appellants probation revocation hearing comported with the due process requirements of People v. Vickers (1972) 8 Cal.3d 451.
There was no sentencing error.
There are no legal issues that require further briefing.
The order revoking appellants probation and the sentence imposed are affirmed.
We concur: Haerle, J., Lambden, J.