Opinion
E069979
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. DENISE SHARON CHANEY, Defendant and Appellant.
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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1701120) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) 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 criminal threats 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, § 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)).
Unless otherwise indicated, all undesignated statutory references are to the Penal Code.
Before trial, the trial court denied defendant's request pursuant to Romero 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 used a deadly weapon during the commission of count 2. And, in a bifurcated proceeding, the trial court found true the prior conviction allegations.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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
A. Prosecution Evidence.
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, causing defendant to stumble and fall. D. did not feel threatened by defendant, but she was angry and did not "know what else to do" to stop the argument.
On direct, D. testified she did not hit defendant "with a closed hand" but merely "pushed her out of my face." On cross-examination, D. acknowledged that at the preliminary hearing she testified she had "slapped" defendant.
As to the current matter, D. testified she did not "go after" defendant after she fell. However, defendant went for her purse and said, "I got something for you. I got something for that ass." 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. 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, "You see how easy this is. You see how easy I could like move the knife." 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."
D. described the weapon as a "folding knife" or pocketknife, the "type of knife you can open," with a three-to-four-inch blade.
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.
B. Defense Evidence.
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. Defendant had a "little knife gadget" attached to her keys. The entire knife was three to five inches long.
On cross-examination, defendant testified she and D. were still arguing after she got up from the floor and before she reached for her bag.
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 she and 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
A. Defendant Was Not Prejudiced by the Absence of a Self-Defense Jury Instruction, and Her Attorney Did Not Render Ineffective Assistance of Counsel by Failing to Request One.
Defendant argues the trial court had a sua sponte duty to instruct the jury on self-defense, and the court's failure to do so was prejudicial. In addition, defendant contends her appointed attorney rendered ineffective assistance of counsel by not requesting a self-defense instruction. Regardless of whether the trial court had a sua sponte duty to instruct on self-defense in this case, failure to do so did not prejudice defendant. And, the lack of prejudice dooms defendant's related claim of ineffective assistance of counsel.
Defendant contends the trial court's sua sponte duty applied to the charge of assault with a deadly weapon and to the charge of criminal threats. Defendant cites no authority for the proposition that self-defense applies to verbal acts, and we have found none. To the contrary, the weight of the extant authority clearly indicates that self-defense is only a defense to crimes involving the reasonable use or attempted use of physical force. (Civ. Code, § 50 ["Any necessary force may be used to protect from wrongful injury"]; People v. Clark (2011) 201 Cal.App.4th 235, 250 ["Self-defense allows the use of reasonable force to resist the unlawful application of force or unlawful touching."]; CALCRIM No. 3470 [elements for self-defense or defense of another include, inter alia, "defendant reasonably believed that the immediate use of force was necessary to defend against the danger," and "defendant used no more force than was reasonably necessary to defend against the danger"].)
Defendant's reliance upon section 693 is misplaced. Sections 692 through 694 codify the privilege to make lawful "resistance" to various unlawful acts. In the abstract, resistance might include verbal acts, but in context it is clear those statutes apply only to physical resistance, such as use of reasonable force to resist unlawful arrest or unlawful use of force by a peace officer.
1. Additional background.
During pretrial proceedings, the subject of self-defense was briefly discussed, directly and indirectly. For instance, during the hearing on defendant's Romero motion, defense counsel told the court that D. "is substantially larger than my client" and, although "the testimony [at the preliminary hearing] was that my client did, in fact, pull the knife on her daughter," D. "was much better equipped to defend herself than my client was." And during a hearing on Evidence Code section 402 motions about the admissibility of one of defendant's statements during the incident ("I got something for that ass,") the trial judge stated, "even the victim says that [defendant] may [have] be[en] acting in self-defense." Defense counsel responded that D. told police "she started it all by pushing [defendant] away or pushing her face, or something like that. That's what started this whole thing. So I would assume that at the end of the trial we would probably be asking for a self-defense instruction." After some further discussion of D.'s testimony at the preliminary hearing, the court suggested defense counsel not address self-defense during opening statements.
Ultimately, defense counsel did not request a self-defense instruction, and the trial court did not give one to the jury on its own motion. And, counsel did not object to the absence of a self-defense instruction. However, during closing argument, defense counsel essentially argued the quarrel between defendant and D. turned into "mutual combat," and defendant "had to get the knife because she's tiny and felt she had to defend herself. Those were [D.'s] words." According to counsel, D. had "whopped" defendant before, so pulling out the knife "was a form of protecting herself." In the context of arguing defendant's statements during the fight were not criminal threats, counsel told the jury the argument escalated to the point where "[t]he bigger woman punches the smaller woman, and to defend herself she gets a knife."
In rebuttal, the prosecutor told the jury, "Defense made a statement about mutual combat. Nowhere are you given jury instructions about mutual combat, and there's a reason why, because it's not mutual combat." According to the prosecutor, it would have been mutual combat if, upon being punched or pushed, defendant had immediately punched D. or pushed her in return. "It is not mutual combat when someone withdraws, which is exactly what [D.] did. She ran to the bedroom to get away."
2. Applicable law.
"The trial court must instruct the jury 'on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.'" (People v. Anderson (2018) 5 Cal.5th 372, 413.) "A trial court is required to instruct sua sponte on any defense, including self-defense, only when there is substantial evidence supporting the defense, and the defendant is either relying on the defense or the defense is not inconsistent with the defendant's theory of the case." (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
In deciding whether there is substantial evidence to trigger the sua sponte duty to instruct on a defense, "'the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt."'" (People v. Saavedra (2007) 156 Cal.App.4th 561, 567, quoting People v. Salas (2006) 37 Cal.4th 967, 982.) "The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 . . . .) To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance '"'fell below an objective standard of reasonableness . . . under prevailing professional norms.'"' (People v. Lopez (2008) 42 Cal.4th 960, 966 . . . .) To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (Ibid.; In re Harris (1993) 5 Cal.4th 813, 833 . . . .)" (People v. Mickel (2016) 2 Cal.5th 181, 198.)
3. Analysis.
We need not decide whether the trial court had a sua sponte duty to instruct on self-defense in this case. The "failure to instruct on self-defense [was] harmless even assuming the more stringent harmless beyond a reasonable doubt standard applies. [Citations.] Under the Chapman [v. California (1967) 386 U.S. 18] standard, an error is harmless if the record establishes beyond a reasonable doubt that the error did not contribute to the jury's guilty verdict. [Citations.] '"The question is whether there is a reasonable possibility that [the error] contributed to the conviction."' [Citation.] '"To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record."'" (People v. Saavedra, supra, 156 Cal.App.4th at p. 569.)
"'To justify an act of self-defense . . . , the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him [or her]. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.'" (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) The defendant's belief in the need to act in self-defense must be objectively reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) Whether a defendant reasonably acted in self-defense "is determined from the point of view of a reasonable person in the defendant's position. The jury must consider all the facts and circumstances it might '"expect[] to operate on [defendant's] mind."'" (People v. Minifie, at p. 1065.)
It is not reasonably probable that a jury, having been properly instructed on self-defense, would have concluded defendant used the knife in self-defense. The prosecution introduced evidence that D. pushed defendant's face away with her open hand, and defendant stumbled and fell. D. did not "go after" defendant when she was on the floor. However, defendant reached for her purse, pulled out a knife, and said, "I got something for that ass." Although the two had fought on previous occasions, and D. admitted to having gotten physical on at least one of those occasions, defendant had never pulled a knife before. D. ran to the bedroom, followed by defendant. The two then fell to the floor and struggled over the knife. As D. held defendant's wrist, defendant switched the knife from one hand to the other and said, "You see how easy I could like move the knife."
Defendant testified D. punched her in the face with a closed fist, causing her to stumble back and fall. Defendant denied she chased D. to the bedroom or that she lunged at D. with the knife. She testified she went to retrieve her toiletries from the bathroom, and that, when D. tried to push her, the two fell to the floor. Defendant testified she pulled the knife because she was scared, but that she did not jab it at D. or threaten her with it.
On these facts, it is not reasonably probable a jury would have concluded defendant used the knife out of a reasonable belief she was in imminent danger of suffering GBI. (People v. Minifie, supra, 13 Cal.4th at p. 1064.) Assuming as true defendant's testimony that D. punched her with a closed fist, the evidence showed D. withdrew from the quarrel/fight and fled to her bedroom. If defendant reasonably believed she was in imminent danger of suffering GBI, she probably would not have pursued D. to the bedroom (as D. testified) or gone to retrieve her toiletries from the bathroom, which was next to the bedroom (as defendant testified). "[A]n assailed person has no duty to retreat and is entitled to stand his [or her] ground or pursue the assailant until the danger of bodily injury or death has passed, even if safety could have been achieved by retreating." (People v. Blessett (2018) 22 Cal.App.5th 903, 951, fn. 23; see CALCRIM No. 3470.) But, the right to use force in self-defense ends when the assailed person is no longer in imminent danger of suffering GBI. "'When the danger has passed and the attacker has withdrawn, there can be no justification for the use of further force.'" (People v. Smith (1981) 122 Cal.App.3d 581, 590, italics added; see CALCRIM No. 3474.)
Moreover, it is not reasonably probable that a jury would conclude defendant used an amount or type of force that was reasonably necessary under the circumstances. (People v. Minifie, supra, 13 Cal.4th at p. 1065.) Again, even if we accept as true defendant's testimony that D. punched her with a closed fist, the escalation from a fist to a knife was not reasonable under the totality of the circumstances. (See People v. Enriquez (1977) 19 Cal.3d 221, 228 ["an assault [with fists] does not justify the use of a deadly weapon in self-defense"], disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) There is no evidence D.'s punch would have caused a reasonable person to believe she needed to arm herself with a deadly weapon to defend against imminent GBI. To repeat, after hitting (or pushing) defendant, D. did not "go after" defendant again. Instead, she fled to the bedroom, and it was defendant who followed armed with the knife.
Defendant contends her use of a knife was reasonable under the circumstances because she was much smaller than D. True, evidence was introduced during the prosecutor's case-in-chief that D. was, in fact, larger than defendant. But, during the defense case, defendant admitted that, although she was smaller than D., she was still able to get on top of D.
Previously, CALJIC No. 5.31 provided, "[a]n assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon [him] [her]." The current jury instructions provide more broadly that a defendant properly acts in self-defense or in defense of another if, inter alia, she "used no more force than was reasonably necessary to defend against the danger." (CALCRIM No. 3470.) "If the defendant used more force than was reasonable," however, "the defendant did not act in lawful (self-defense/ [or] defense of another)." (Ibid.)
Our conclusion that the trial court's failure to instruct on self-defense was harmless beyond a reasonable doubt leads ineluctably to the conclusion that defendant's appointed attorney did not render ineffective assistance of counsel by failing to request such an instruction. "Because the absence of such [a self-defense] instruction did not prejudice [her], defendant fails to make the necessary showing that, but for counsel's asserted deficiency, there is a reasonable probability that a determination more favorable to [her] would have resulted." (People v. Lewis, supra, 25 Cal.4th at p. 646.)
B. Substantial Evidence Does Not Support Defendant's Conviction for Misdemeanor Child Endangerment.
Defendant argues her conviction for misdemeanor child endangerment must be reversed because the record does not contain substantial evidence she endangered Z.'s "person or health" during the argument and struggle over the knife. We agree.
1. Additional background.
In the information, the People alleged defendant committed a felony violation of section 273a, subdivision (a) (count 3), because she "wilfully and unlawfully, under circumstances and conditions likely to produce great bodily harm and death, cause[d] and permit[ted] a child, [Z.], to suffer, and inflicted thereon unjustifiable pain and mental suffering, and, having the care and custody of said child, . . . wilfully cause[d] and permit[ted] the person and health of said child to be injured and did wilfully cause and permit said child to be placed in such a situation that her person and health was endangered."
The argument between D. and defendant started in the kitchen. Z. was in the living room at the time. D. walked to the living room, and defendant followed her. Z. was on the floor of the living room "the whole time" D. and defendant were in each other's face arguing. The living room was "not that big," so Z. was only "a few feet" away. Z. was still in the living room when D. ran to her bedroom and when defendant went for her purse (that was either in the kitchen or the living room). D. testified Z. would not have been able to see the struggle over the knife in the bedroom. However, D. could hear Z. crying and screaming, and she knew Z. was scared because sometime later Z. said, "she didn't want nana to cut her." D. testified she grabbed Z. and left the apartment because she "wanted to get her to safety immediately."
On cross-examination, D. testified she did not immediately grab Z. and leave the apartment as soon as defendant reached for her purse because "[a]t that first moment" she did not fear for Z.'s safety. And, on redirect, D. testified she was "[n]ot necessarily" afraid for Z.'s physical safety during the incident. "Like, I don't think my mom would have cut [Z.], but I was afraid of the fact that she was there and she was witnessing everything."
On cross-examination, defendant testified that, after she grabbed her keys with the attached knife, she did walk past Z. on her way to the bedroom.
Although the information alleged defendant had inflicted unjustifiable pain and mental suffering upon Z., during the discussion of jury instructions, the People informed the court they were limiting the theory of culpability to endangerment of Z.'s "person and health." Using a modified CALCRIM No. 821, the trial court instructed the jury that, to find defendant guilty of felony child endangerment, it had to find: "Number one, the defendant, while having the care and custody of a child, willfully caused or permitted a child to be placed in a situation where the child's person or health is in danger; Number two, the defendant caused or permitted the child to be in danger under circumstances or conditions that's likely to prove [sic (produce)] great bodily harm or death; Number three, the defendant was criminally negligent when she caused or permitted the child to be in danger."
Defendant orally moved for a directed acquittal on count 3 during an unreported sidebar discussion. The trial court denied the motion. It is unclear on this record what theory of culpability the People argued in opposition to the motion.
Although the instruction for felony child endangerment omitted the optional element of causing the child "to suffer unjustifiable physical pain or mental suffering" (CALCRIM No. 821), the trial court nonetheless instructed the jury that "[u]njustifiable pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances."
The court also instructed the jury on the lesser included offense of misdemeanor child endangerment. Using a modified CALCRIM No. 823, the court instructed the jury that, to find defendant guilty of misdemeanor child endangerment, it had to find: "Number one, the defendant while having the care and custody of the child willfully caused or permitted the child to be placed in a situation where the child's person or health was in danger; two, the defendant was criminally negligent when she caused or permitted the child to be in danger." As with the felony instruction, the misdemeanor instruction omitted the allegation that defendant caused Z. unjustifiable pain and mental suffering.
During closing argument, the prosecutor argued the evidence had established that defendant placed Z.'s life in danger. "In the background of the 911 call and [D.'s] statement to [the police], you can hear [Z.] screaming and crying in the background. [Z.] is very much aware of what's going on, not because mom told her, but because she watched it. She saw grandma with a knife pass by her and go to her mother. She knew that grandma cut mom. Nana cut mom. And that happened feet away from her." With respect to the element for felony child endangerment that defendant placed Z. in danger under circumstances that were likely to produce death or GBI, the prosecutor argued it did not matter that Z. was not actually harmed because, after defendant ran past with the knife, Z. "could have easily come up behind and decided to help mom."
Defense counsel argued there was no evidence Z. watched the struggle between D. and defendant. "As I recall the evidence, [Z.] was in the living room when they were in the bedroom. She was in the living room when they came out. It didn't seem that she ever moved, so we don't know that she ever watched it."
As stated, ante, the jury acquitted defendant of felony child endangerment but found her guilty of the lesser included offense of misdemeanor child endangerment.
2. Standard of review.
"'The law is clear and well settled. "On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'" (People v. Jones (2013) 57 Cal.4th 899, 960.) "In conducting such a review, we '"presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Lee (2011) 51 Cal.4th 620, 632.) "'We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented.'" (People v. Garcia (2008) 168 Cal.App.4th 261, 272.)
Ordinarily, when determining whether substantial evidence supports a conviction, we are not limited by the prosecutor's arguments, including the prosecutor's decision to limit the theories he or she wishes to pursue during closing arguments to the jury. (People v. Perez (1992) 2 Cal.4th 1117, 1126; People v. Brown (2017) 11 Cal.App.5th 332, 341.) However, we "cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule." (People v. Kunkin (1973) 9 Cal.3d 245, 251, italics added; see People v. Smith (1984) 155 Cal.App.3d 1103, 1145 ["It would deprive the defendant of his right to a jury trial if an appellate court could find a theft on a theory not presented to the jury."], disapproved on another ground in Baluyut v. Superior Court (1996) 12 Cal.4th 826. 832-835.) Therefore, the question before us is whether there is substantial evidence in the record to support defendant's conviction for misdemeanor child endangerment on the sole theory included in the jury instructions. (See People v. James (2014) 230 Cal.App.4th 1256, 1262-1263 ["salient question" before appellate court was whether substantial evidence supported conviction for battery of a station agent in violation of § 243.3 because the jury was not instructed on the battery of other enumerated transportation workers].)
3. Analysis.
Section 273a, subdivision (b), provides: "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
When, as here, the harm to the child is indirectly inflicted, the requisite mental state is criminal negligence. (People v. Valdez (2002) 27 Cal.4th 778, 781.) "Criminal negligence is aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. [Citation.] A defendant may be deemed to be criminally negligent if a reasonable person in his or her position would have been aware of the risk." (People v. Burton (2006) 143 Cal.App.4th 447, 454.)
The People's theory at trial, and again on appeal, is that Z.'s "person or health" was endangered simply because she was present in the living room during the quarrel/fight between D. and defendant, and because defendant walked by Z., while holding the knife. Although they concede the struggle over the knife took place in the bedroom while Z. was in the living room, the People contend Z. "was very much part of the deadly encounter."
We are not persuaded that Z.'s mere presence in the apartment proves defendant endangered the child's person or health. Unjustifiable mental suffering caused by a child being present and witnessing domestic violence between parents or other household members, including witnessing the bloody aftermath, will support a misdemeanor conviction for child endangerment. (See People v. Burton, supra, 143 Cal.App.4th at pp. 453-457.) "Children often witness domestic violence. [Citation.] There are up to six million victims of domestic violence annually in the United States and half of these incidents occur in the presence of children. [Citation.] Children witnessing such violence suffer adverse effects similar to victims of direct physical and sexual abuse. [Citations.] Section 273a applies to suffering resulting from direct physical and sexual abuse. It follows that section 273a should also protect children from actions that indirectly cause similar suffering." (Id. at p. 456.) Although D. testified she was afraid Z. "was witnessing everything" during the struggle over the knife, and the prosecutor argued defendant was guilty of child endangerment because Z. "watched" the struggle and "saw grandma" holding a knife, the People opted to not instruct the jury on mental suffering child endangerment, and we cannot affirm the conviction on that basis. (People v. Kunkin, supra, 9 Cal.3d at p. 251.)
Likewise, the evidence in the record simply does not support the People's assertion that Z.'s person or health was endangered simply by her being in the living room when defendant walked by Z., while holding the knife. Unlike walking through a room with a loaded firearm or a large bladed weapon (a sword, machete, etc.), the mere presence of a small pocketknife in the living room would not necessarily place Z. in danger. As noted, ante, D. testified the pocketknife had a three-to-four-inch blade. Defendant testified the knife was attached to her keys, and the entire knife (handle and blade) was no more than five inches long. The People introduced no evidence that defendant recklessly brandished or swung the knife at D. in the living room while Z. was dangerously close. And the evidence establishes Z. remained in the living room while D. and defendant were on the bedroom floor struggling over the knife. Nothing in the record supported the prosecutor's pure conjecture during closing argument that Z. might have come to D.'s aid, walked up behind defendant during the struggle, and been harmed. Finally, although Z. was screaming and crying during the argument and struggle, D. herself testified she was "[n]ot necessarily" fearful for Z.'s physical safety.
During oral argument before this court, the People argued our conclusion is too broad and would mean a defendant might never be found guilty of misdemeanor child endangerment if he or she stored an unloaded weapon in a room the child might access, or if a defendant maintained a drug laboratory in a garage. We need not address those situations, which are very different to the facts of this case. As stated, ante, walking through a room with a small pocketknife is not the same as walking through a room with a firearm or a large bladed weapon, and the possibility of physical injury to a child present in the room is much more likely in the latter situation than in the former.
Because the record does not contain substantial evidence that defendant endangered Z.'s person or health, we reverse defendant's conviction for misdemeanor child endangerment.
C. The Trial Court Correctly Found True the Strike and Serious Prior Offense Allegations.
Defendant raises a number of challenges to the trial court's true finding on the prior conviction allegations: (1) the record does not support the trial court's finding that defendant's 1997 conviction for aggravated assault was for assault with a deadly weapon and qualifies as a serious and violent felony; (2) the trial court violated defendant's jury trial rights under the Sixth Amendment to the United States Constitution by engaging in impermissible judicial factfinding; and (3) defendant's waiver of her right to a jury trial on the prior conviction allegations was not knowingly and voluntarily given because she did waive her right to be free from such impermissible judicial factfinding. None of defendant's challenges are persuasive.
Correctly anticipating the People would argue she forfeited her claim of impermissible judicial factfinding, defendant argues her attorney's failure to object was the result of ineffective assistance of counsel. We find no forfeiture, so we need not address further defendant's claim of ineffective assistance of counsel.
1. Additional background.
The trial court ruled that, if defendant testified, the prosecutor could impeach her with a 1997 conviction for assault with a deadly weapon. The court denied defendant's request to sanitize the prior conviction by limiting the prosecutor to asking if defendant had been convicted of a felony. Defendant admitted on direct examination that she had been convicted in 1997 of assault with a deadly weapon.
Defendant moved to bifurcate the trial and have the court decide "the truth or the untruth of the prior" conviction allegations and, later, defendant waived her right to a jury trial on those allegations. During a brief court trial conducted after the jury had rendered its verdicts and true finding, the prosecutor introduced testimony from an investigative technician to lay the foundation for admitting records to prove defendant's 1997 conviction (exhibits 14-21) and asked the court to consider defendant's admission that she had suffered a conviction for assault with a deadly weapon.
The felony complaint from defendant's 1997 prior alleged she had committed an assault with a deadly weapon, to wit, "The Club," and by means of force likely to produce GBI, in violation of former section 245, subdivision (a)(1). The complaint also alleged the assault was a serious felony offense because defendant personally inflicted GBI on the victim. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) An interlineation appears to indicate the complaint was amended or was going to be amended to allege one count of robbery. (§ 211.) Pursuant to a plea agreement, defendant pleaded no contest to the assault charge and admitted she had used a deadly or dangerous weapon during the commission of a felony. (§ 12022, subd. (b)(1).) The court accepted the plea, dismissed the robbery count in the interest of justice (§ 1385), suspended the imposition of sentence, and placed defendant on probation for three years on the condition she serve one year in county jail.
The "Club" is a metal antitheft device for automobiles. (See People v. Streeter (2012) 54 Cal.4th 205, 214; People v. Pre (2004) 117 Cal.App.4th 413, 417; People v. Huynh (2002) 99 Cal.App.4th 662, 678-679.) "The Club has two telescoping rods with hooks at each end to attach to the steering wheel. It operates by having one of the rods extend well beyond its hook portion such that when in place, it prevents full rotation of the steering wheel. To lock in place, the Club employs a dead-bolt style locking mechanism, requiring a key to allow the telescoping rod to be moved in place." (Winner Int'l Royalty Corp. v. Wang (D.D.C. 1998) 11 F.Supp.2d 18, 20.)
Defendant's plea was entered pursuant to People v. West (1970) 3 Cal.3d 595, meaning she did not admit the factual basis for her plea.
The trial court in this case found true that on December 9, 1997, defendant suffered a conviction under former section 245, subdivision (a)(1), and found true that the conviction was a strike prior and a serious felony offense.
2. Standard of review.
"Former section 245, subdivision (a)(1) . . . described alternative means of committing the same offense, aggravated assault, within the same subdivision, and a jury could convict without regard to whether the crime was committed by means of a deadly weapon or by force likely to produce great bodily injury. [Citations.] [¶] Although use of a deadly weapon and great bodily injury were interchangeable for purposes of conviction under former section 245, subdivision (a)(1), under the Three Strikes law only assault with a deadly weapon constitutes a serious felony. [Citations.] Accordingly, the mere fact of a conviction for aggravated assault under former section 245, subdivision (a)(1) would be insufficient to establish the prior conviction was a strike in any case in which the verdict or plea did not specify the precise means used to commit the offense." (People v. Learnard (2016) 4 Cal.App.5th 1117, 1121-1122, fn. omitted.)
"The prosecution is required to prove each element of an alleged sentence enhancement beyond a reasonable doubt. [Citations.] Where, as here, the mere fact that a defendant was convicted under a particular statute does not establish the serious felony allegation, our Supreme Court has held that the sentencing court may examine 'the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.' [Citations.] [¶] A plea of no contest admits the elements of the crime, but does not constitute an admission of any aggravating circumstances. [Citation.] '[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.'" (People v. Learnard, supra, 4 Cal.App.5th at p. 1122.)
"We review the record in the light most favorable to the judgment to determine whether it is supported by substantial evidence. [Citation.] 'In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.'" (People v. Learnard, supra, 4 Cal.App.5th at pp. 1122-1123.) We must affirm implied factual findings that underpin the true finding on the prior conviction allegation if they are supported by substantial evidence. (See People v. Wiley (1995) 9 Cal.4th 580, 592-594 [concluding "the evidence before the trial court in the present case was sufficient to support its implied conclusion that the prior convictions in the present case arose from charges separately brought" for purposes of § 667, subd. (a)(1)].)
3. Analysis.
Defendant contends the true finding that her prior conviction was a strike and a serious felony offense is not supported by substantial evidence because the record does not establish she pleaded no contest to assault with a deadly weapon. True, the record in this case does not contain a transcript of the plea colloquy from defendant's 1997 case, and neither the plea form nor the minutes indicate defendant specifically pleaded no contest to assault with a deadly weapon as opposed to assault by means of force likely to produce GBI. But the trial court in this case was permitted to consider the record of conviction to determine the nature of defendant's 1997 aggravated assault conviction. (People v. Learnard, supra, 4 Cal.App.5th at p. 1122.) As stated, ante, at the same time defendant pleaded no contest to aggravated assault, she admitted to having personally used a deadly or dangerous weapon during the commission of a felony, within the meaning of section 12022, subdivision (b)(1). In other words, the record of conviction before the court below amply supports the court's implied finding that defendant's 1997 conviction for aggravated assault was for assault with a deadly weapon and not for assault with force likely to result in GBI.
For purposes of the three strikes law, there is no meaningful distinction between a deadly weapon and a dangerous weapon. (§ 1192.7, subd. (c)(23) ["'serious felony'" includes "any felony in which the defendant personally used a dangerous or deadly weapon"].)
Defendant argues her "apparent admission to the personal use enhancement actually works against the [trial court's] true finding" because, on its face, the one-year sentence enhancement for personal use of a dangerous or deadly weapon during a felony offense cannot be imposed when "use of a deadly weapon or dangerous weapon is an element of that offense." (§ 12022, subd. (b)(1).) True, the one-year sentence enhancement under section 12022, subdivision (b)(1), may not lawfully be imposed when use of a deadly or dangerous weapon was an element of the underlying offense. But the trial court in 1997 imposed no sentence whatsoever—it suspended imposition of sentence and placed defendant on probation for three years with the condition she serve one year in county jail. The bar to imposing the one-year sentence enhancement did not prevent defendant from admitting to the fact that she personally used a deadly or dangerous weapon, and it did not bar the court in the current case from considering that admission to determine the nature of defendant's 1997 aggravated assault conviction.
In addition, defendant argues that, although she "apparently admitted" to the personal use enhancement, it "was treated as an afterthought and is not reflected on appellant's rap sheet." Defendant's characterization of that admission is not supported by the record.
First, the minutes from the 1997 plea hearing clearly state, "Defendant admits allegation pursuant to Penal Code section 12022(b)(1)." (Italics added.) Defendant did not "apparently" admit to personally using a deadly or dangerous weapon—she in fact admitted it. Second, inclusion of the personal use enhancement in the plea form signed by defense counsel and signed and initialed by defendant shows it was an integral part of the agreement with the prosecutor and not merely an "afterthought." And third, omission of the personal use enhancement from defendant's "rap sheet" is of no moment whatsoever because, as noted ante, it was included in the official minutes of the plea hearing. The permanent minutes are "court records" as much as an order signed by a judge (Gov. Code, §§ 68151, subd. (a)(3), 68152, subd. (g)(11); People v. Dubon (2001) 90 Cal.App.4th 944, 954), and they "'constitute the only official record of the actions of the court.'" (Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113.) Entry of the minutes is a ministerial function of the court clerk (Gov. Code, § 69844; 2 Witkin, Cal. Procedure (5th ed. 2008) Courts, §§ 364-365, pp. 464-465), and is subject to the presumption "that official duty has been regularly performed." (Evid. Code, § 664; see People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. 5.)
Defendant also argues the trial court exceeded the scope of a proper inquiry into the nature of the 1997 conviction by engaging in judicial factfinding, and that her waiver of a jury trial on the prior conviction allegations was invalid because she did not knowingly waive the bar to judicial factfinding. Defendant's reliance on People v. Gallardo (2017) 4 Cal.5th 120 is misplaced. Gallardo held, "a [trial] court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature and basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as a factual basis for a guilty plea." (Id. p. 136.)
The trial court in Gallardo had relied on a preliminary examination transcript to determine the defendant's prior conviction for aggravated assault was for assault with a deadly weapon and, therefore, that the conviction was a serious felony offense. (People v. Gallardo, supra, 4 Cal.5th at pp. 125-126.) The California Supreme Court concluded "the sentencing court engaged in an impermissible inquiry to determine '"what the defendant and [trial] judge must have understood as the factual basis of the prior plea."' [Citation.] Because the relevant facts were neither found by a jury nor admitted by defendant when entering her guilty plea, they could not serve as the basis for defendant's increased sentence here." (Id. at p. 137.)
Unlike Gallardo, nothing in the record before us indicates the trial court engaged in impermissible judicial factfinding by independently reviewing "record evidence" (People v. Gallardo, supra, 4 Cal.5th at p. 124) when it found true the allegation that defendant suffered a prior serious felony conviction. Although defendant pleaded no contest in the 1997 case after she had been held to answer and an information had been filed, the prosecutor in this case did not submit a transcript of the preliminary examination to prove the prior conviction allegations. The only exhibits relating to the 1997 case that were admitted consisted of the felony complaint, the plea form, the minutes of the plea hearing, a CLETS report, and various mugshots for identification purposes. We decline to assume the trial court went beyond those records.
"CLETS refers to the California Law Enforcement Telecommunications System. (Gov. Code, § 15150 et seq.; People v. Martinez (2000) 22 Cal.4th 106, 113, 124 . . .)" (In re Jonathan V. (2018) 19 Cal.App.5th 236, 239, fn. 4.)
Defendant apparently argues the bar to judicial factfinding articulated in Gallardo also barred the trial court from drawing reasonable inferences from the exhibits admitted during the court trial. Defendant does not challenge the admission of those exhibits, and nothing in Gallardo supports her position that the trial court was restrained from drawing reasonable inferences from the facts necessarily contained in those documents. Quite to the contrary, "[t]he trial court was permitted to draw reasonable inferences from the records offered to prove appellant suffered a prior serious felony conviction." (People v. Learnard, supra, 4 Cal.App.5th at p. 1123.) Nothing in the record demonstrates the trial court "went beyond reasonable inference [by] actually weigh[ing] the evidence contained in those documents in order to make its own factual determination about the nature of the offense." (Ibid.)
Because we conclude the trial court did not engage in impermissible judicial factfinding when it found true the allegation that defendant had suffered a prior serious felony conviction, we need not decide whether defendant's jury trial waiver was insufficient because she did not waive the limitation on judicial factfinding (nor, for that matter, do we have to decide whether a defendant may even waive that limitation).
D. The Trial Court on Remand Shall Make Express Factual Findings Whether Defendant Had a Different Intent and Objective for the Aggravated Assault and Criminal Threat Counts and Determine Whether the Sentence on Count 2 Should be Stayed Pursuant to Section 654 .
Defendant argues the trial court erred by not staying the sentence on count 2 pursuant to section 654. The trial court concluded the aggravated assault and criminal threat counts arose from the same set of facts for purposes of imposing a concurrent sentence on the latter count, but made no express finding that defendant had different intents and objectives for each offense when it declined to stay the sentence on count 2. The offenses in this case occurred almost simultaneously, and the evidence of defendant's intention and objective is almost entirely circumstantial. Rather than determine on this record whether substantial evidence supports the trial court's implied findings, we remand for the trial court to make express findings about defendant's intent and objectives and to determine whether the sentence on count 2 must be stayed.
1. Additional background.
In a sentencing report, the probation officer indicated that, although the criminal threats alleged in count 2 were "connected with" the aggravated assault alleged in count 1, the threats were "a separate incident" and, therefore, section 654 did not apply. The probation officer recommended the trial court sentence defendant on count 2 to one-third the middle term of two years, doubled pursuant to the three strikes law, for a term of one year four months to be served consecutively with the sentence on count 1. The prosecutor's sentencing memorandum also argued section 654 did not apply to the felony counts because, "[w]hile Defendant was convicted of multiple counts arising on the same date, the charges were separate offenses." The prosecutor also argued that, under the three strikes law, the sentence on count 2 had to run consecutively to the sentence on count 1. "Here, all counts arose from the same occasion, but [from] a different set of operative facts. Therefore, the felony counts must be run consecutive to each other."
At the sentencing hearing, the court indicated the sentence on count 2 "could run concurrent." The prosecutor responded by arguing the court could not run the sentence on count 2 concurrently with count 1 because the three strikes law "requires mandatory consecutive sentences when there's a current conviction on more than one felony count not committed on the same occasion . . . [¶] . . . [¶] . . . and not arising from the same set or operative facts. Here, although all the counts do arise from the same occasion, it is, in fact, a different set of operative facts." "So the Court would have to find that it's not arising from the same facts—or is, in fact, arising from the same set of operative facts for you to find it concurrent."
The court asked the prosecutor why it could not stay the sentence on count 2 pursuant to section 654 because "[i]t's all one transaction." The prosecutor answered indirectly, again arguing the sentence on count 2 "should actually be run consecutive. The crimes are separate and apart from each other. Specifically, Count 1 was the assault with the deadly weapon, which occurred while she was chasing her daughter with the knife and then on top of her with the knife. And then Count 2, which is the [section] 422, was before the knife was drawn. It was as she was grabbing it, which is a different set of facts. I mean, yes, it's all one occurrence, but at the same time they are complete and distinct from each other. The People's position is that they can be run consecutive and they are not [section] 654." Defense counsel agreed with the court that counts 1 and 2 arose from "one continuous act" and "the same set of facts," so the court could impose a concurrent sentence on count 2. Counsel did not specifically address the court's question about section 654 or request that the court stay the sentence on count 2 pursuant to that section.
The court did not stay the imposition of the sentence on count 2 pursuant to section 654. Instead, it found count 2 "arose from the same set of facts" as count 1 and sentenced defendant on count 2 to one year four months to be served concurrently to the term on count 1.
2. Applicable law.
"It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the 'same act or omission.' [Citation.] However, because the statute is intended to ensure that defendant is punished 'commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Section 654, subdivision (a), provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"'"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."'" (People v. Capistrano (2014) 59 Cal.4th 830, 885, overruled on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.) "'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] '"The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced."'" (Capistrano, at p. 886.)
The trial court's findings about a defendant's intent and objectives "will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
3. Analysis.
Because the trial court expressly concluded the aggravated assault and criminal threats arose from the same set of facts for purposes of concurrent sentencing under the three strikes law, it must have implicitly concluded defendant had a different intent and objective for the crimes when it declined to stay the sentence on count 2 pursuant to section 654.
Defendant argues the trial court erred because her "single intent and objective in counts one and two, criminal or otherwise, was subduing [D.] after she hit appellant in order to prevent a further attack." The People counter that defendant "had two distinct intents and objects when she threatened and assaulted her daughter." The People imply the intent behind defendant's first threat ("I've got something for that ass") was anger over being punched, and the intent behind the second threat ("See how easy it is?") was to demonstrate her control over D. as she was on top of her. With respect to the assault, the People argue defendant "had time to deliberate whether she should cease hostilities" once D. ran to the bedroom, but she instead armed herself and chased after D., apparently with the intent to continue the fight out of pure rage and cussedness.
Rather than divine defendant's intent and objects on our own, we remand for the trial court, which had the benefit of hearing the testimony firsthand, to make express findings about defendant's intentions and objectives and to determine whether the sentence on count 2 must be stayed pursuant to section 654. (See People v. Bui (2011) 192 Cal.App.4th 1002, 1016 [remanding for trial court to make factual findings and to determine whether to impose concurrent sentence pursuant to § 654].)
E. The Trial Court on Remand Shall Decide in the First Instance Whether to Exercise its Discretion to Strike Defendant's Prior Serious Felony Enhancement.
Finally, in a supplemental brief, defendant contends we should remand this matter for the trial court to exercise its new discretion to strike her five-year serious felony enhancement under Senate Bill No. 1393 (2017-2018 Reg. Sess; Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019). The People concede (1) the new discretion applies to defendant's nonfinal judgment and (2) a remand is appropriate. We agree with the People's concessions.
On January 4, 2019, appellant filed a request that we take judicial notice of legislative history materials related to Senate Bill No. 1393. On January 24, this court reserved ruling on the request for consideration with the appeal. The request for judicial notice is denied as moot.
"On September 30, 2018, the Governor signed Senate Bill [No.] 1393 which, effective January 1, 2019, amends sections 667[, subdivision] (a) and 1385[, subdivision] (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. . . . Under the . . . versions of these statutes [applicable when the crimes in this case occurred and at sentencing], the court [was] required to impose a five-year consecutive term for 'any person convicted of a serious felony who previously has been convicted of a serious felony' (§ 667[, subd.] (a)), and the court ha[d] no discretion 'to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.' (§ 1385[, subd.] (b).)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) In Garcia, this court, after applying the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 and its recent Supreme Court progeny, concluded the Legislature intended the amendments to sections 667 and 1385 "to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective." (Garcia, at p. 972.)
Because the amendments to sections 667 and 1385 apply retroactively to defendant, we remand for the trial court to decide in the first instance whether it is appropriate to strike defendant's five-year serious felony enhancement.
IV.
DISPOSITION
The conviction for misdemeanor child endangerment (count 3) is reversed.
The matter is remanded for the trial court to make factual findings regarding defendant's intent and objectives for counts 1 and 2 and determine whether the sentence on count 2 must be stayed pursuant to section 654. The trial court shall also decide on remand whether to exercise its discretion to strike defendant's five-year serious felony sentence enhancement.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. I concur: RAMIREZ
P. J.
FIELDS, J., Concurring and Dissenting.
I respectfully dissent from that part of the opinion which determines that no self-defense instruction was required as to the charge of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) In my view, a self-defense instruction was required in this case and the failure of the trial court to instruct on self-defense constituted prejudicial error.
A trial court has a sua sponte duty to instruct on self-defense "when there is substantial evidence supporting the defense, and the defendant is either relying on the defense or the defense is not inconsistent with the defendant's theory of the case." (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) Substantial evidence is "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) In the context of an affirmative defense, the evidence must be "sufficient for a reasonable jury to find in favor of the defendant." (People v. Salas (2006) 37 Cal.4th 967, 982.)
"In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .'" (People v. Salas, supra, 37 Cal.4th at p. 982, quoting People v. Jones (2003) 112 Cal.App.4th 341, 351.)
In my view, defendant was entitled to an instruction on self-defense because substantial evidence supported it. First, I note that self-defense was not inconsistent with defendant's theory of the case. During pretrial Evidence Code section 402 motions, defense counsel explained that D. (alleged victim) started the entire physical part of the altercation and that he "would probably be asking for a self-defense instruction" at the end of the trial. Further, during closing argument, defense counsel argued that D. told the police that her mother was tiny and felt she had to defend herself. Defense counsel argued that "[a]pparently, [D.] has whopped her [defendant] times before [sic], and she's going to do it again. This was a form of protecting herself by getting the knife." Defense counsel also argued that "[t]he bigger woman [D.] punches the smaller woman [defendant], and to defend herself she [defendant] gets a knife." Self-defense was a significant aspect of the defendant's theory of defense.
A defendant acts in lawful self-defense if: "1. The defendant reasonably believed that [she] was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." (CALCRIM No. 3470; People v. Clark (2011) 201 Cal.App.4th 235, 250.)
Substantial evidence presented at the trial of this case required the court to give a self-defense instruction. I am mindful that in determining whether the evidence warranted giving the instruction, the trial court does not judge the credibility of the defense evidence. (People v. Salas, supra, 37 Cal.4th at p. 982.) The question is "whether there was evidence, if believed by the jury, sufficient to raise a reasonable doubt." (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418.)
In this case, such evidence compellingly appears in the record. Defendant testified that she had a prior altercation with D. and "she [D.] hit me on that day also." She testified that D. used a closed fist during that prior attack and she had called the police. D. herself testified that she had prior physical fights with her mother (defendant) and that she was the one who usually started the physical part of the fight. Where a jury finds that the victim "threatened or harmed the defendant . . . in the past, [it] may consider that information in deciding whether the defendant's conduct and beliefs were reasonable." (CALCRIM No. 3470.) Such prior violence by D. on defendant undeniably occurred and serves as evidence which supported giving the instruction in this case to assist the jury in determining whether each of the elements of self-defense was shown.
Moreover, defendant testified that, during the charged incident, she made a verbal comment to D. and D. responded by hitting her with a "closed fist" in the face, causing her to stumble and fall. Defendant also described the attack by testifying that D. "socked me," which surprised her because she "didn't see it coming." She testified that D.'s punch caused a "lump" or "knot" on the left side of her face.
Defendant then testified that she was not able to get up quickly because she "is not young anymore." She testified she had to get on her knees because she cannot just "hop up." After she got up, she grabbed her keys out of her purse. The key holder contained a "little knife gadget on it" which she described as a folding knife, which contains a corkscrew and a nail file on it. This was apparently a small Swiss Army-type knife.
The majority opinion describes it as a "small pocketknife" and distinguishes it from a firearm or a large bladed weapon. (See maj. opn. ante, at p. 22, fn. 11.)
Defendant testified that after she got the things out of her purse, she went to the bathroom to get hygiene products. As she was going to get her things out of the bathroom, D. said something to defendant and defendant stepped in D.'s room. Defendant and D. continued to argue in the hallway, when D. went to push defendant and they both fell to the ground. Defendant specifically testified that D. was attacking her a second time. Defendant testified that when they fell, she ended up on top of D. Defendant testified that, although she still had the pocketknife in her hand, she did not threaten D. with it or jab it at her at any time.
With these facts in the record, I believe the court was required to give a self-defense instruction. If defendant's story was believed by the jury, D. socked defendant with a fist, causing her to stumble and fall and causing a knot or lump to the left side of her face. Having been hit by D. with a closed fist before, defendant retrieved a small folding pocketknife but did not threaten D. with it. D. then went to strike defendant again and they both fell to the ground. Defendant denied ever threatening or jabbing D. with the knife.
Significantly, there is no evidence that defendant ever struck or jabbed at D. at any time during the altercation. D. specifically denied defendant made a stabbing motion at her. There is evidence, however, that D. struck defendant at least once and attempted to do so a second time. Defendant denied that she chased D. into the bedroom or that she ever lunged at D. I believe defendant's version of the altercation constituted substantial evidence that defendant acted in self-defense, which, if believed, was sufficient to raise a reasonable doubt as to defendant's guilt. (People v. Dowdell, supra, 227 Cal.App.4th at p. 1418.) Under these circumstances, the jury should have been permitted to determine whether defendant reasonably believed she was in imminent danger of suffering bodily injury or being touched unlawfully; whether defendant reasonably believed the immediate use of force was necessary to defend against that danger; and whether the defendant used no more force than was reasonably necessary.
"[I] cannot conclude that the court's refusal to instruct on self-defense was harmless. In Breverman [(1998) 19 Cal.4th 142], the Supreme Court rejected the previous strict standard for review of instructional error, and adopted the Watson standard, at least insofar as instructional error relating to lesser included offenses is concerned. Even assuming that the less-stringent Watson test applies here, the error was nevertheless prejudicial. Examining the entire record of this case leaves one with the distinct impression that it is reasonably possible that defendant would have obtained a more favorable outcome if the jury had been permitted to consider whether defendant [acted] in self-defense." (People v Elize (1999) 71 Cal.App.4th 605, 616, fn. omitted.) The evidence in this case warranted the jury's consideration of a self-defense instruction.
People v. Watson (1956) 46 Cal.2d 818.
I would reverse defendant's conviction for violating Penal Code section 245, subdivision (a)(1). In all other respects, I would affirm the judgment.
FIELDS
J.