Opinion
F071564
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY ROSANNE CHENOT, Defendant and Appellant.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12187)
OPINION
APPEAL from a judgment of the Superior Court of Mariposa County. F. Dana Walton, Judge. Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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Chenot was convicted of making criminal threats and of arson of an inhabited dwelling while a state of emergency was in effect. She challenges only her arson conviction on grounds of ineffective assistance of counsel. We reject this claim. Chenot also contends the trial court erroneously imposed a prior prison term sentence enhancement. The People concede the point because the enhancement was neither pleaded in the information nor proven at trial. We agree with the parties and strike the prior prison term enhancement. Finally, Chenot argues that fines and fees imposed by the trial court at sentencing must be stricken because the court failed to orally pronounce specific fine and fee amounts at sentencing. The People respond that the trial court's oral pronouncement to the effect that fines and fees were imposed as set forth in the probation report was sufficient. We agree with the People because Chenot has provided no authority establishing that the court's oral pronouncement was insufficient.
FACTS AND PROCEDURAL HISTORY
The instant case was initiated after an explosive fire gutted the house of Lisa Coats on June 22, 2014; the house was situated on Colorado Road on land owned by the Bureau of Indian Affairs in Mariposa County (near Midpines). Chenot was charged by an information filed in the Mariposa County Superior Court with arson of Coats's house while a state of emergency was in effect (count 1, Pen. Code, § 454, subd. (a)(2)) and making criminal threats against Coats (count 2, § 422). The information further alleged that Chenot had suffered a prior serious felony and strike conviction. (§§ 667, subds. (a)(1) & (b)-(i), 1170.12, subds. (a)-(d).) Chenot was convicted by a jury of both charged counts. She admitted the serious felony and strike enhancement allegations. She was sentenced to an aggregate term of 25 years four months in prison (18 years on count 1, a consecutive term of 16 months on count 2, five years for the serious felony enhancement, and one year for a prior prison enhancement).
Subsequent statutory references are to the Penal Code unless otherwise specified.
The June 2014 Dispute between Chenot and Coats
Chenot had dated Coats's son, Christopher Jones, on and off for seven years, prior to the arson at issue in this case. Their relationship was a volatile one. At the time the arson occurred, Chenot and Jones had a five-year-old son, Sandon, and Chenot was pregnant with the couple's second child.
On June 14, 2014, Coats babysat Sandon overnight, while Chenot and Jones spent time together. The next day, Chenot and Jones came to Coats's house to collect Sandon. Chenot noticed that Coats had trimmed off an uneven piece—about eight square inches—of a blanket that Chenot had left with Sandon. Although Coats had tried to make the blanket "look better," Chenot flew into a rage. She got in Coats's face and "cussed [her] out." Coats yelled back. Jones had to physically separate them to prevent the dispute from escalating into a physical altercation. Coats told Chenot to "get the hell out of [the] house" and threw the blanket in her face. Chenot went outside but "cuss[ed] and rant[ed]" in Coats's yard for the next two hours. Although the women had known each other for five years, they had never fought like this before.
The feud did not blow over. On June 19, 2014, Chenot called Coats's home phone "[n]onstop" over a four-hour period, starting at 10:02 p.m. At one point in that duration, some "scrub brushes" at the end of Coats's relatively long driveway caught fire; firefighters were called to extinguish the fire. Coats told neighbors, without actual evidence, that Chenot was responsible for the fire. After the fire, Coats answered one of Chenot's incessant phone calls. Chenot told her, "I'm going to fucking kill you, bitch." Coats was afraid that Chenot would carry out the threat and attempted to obtain a restraining order against her.
Coats's driveway was approximately 70 yards long.
The Arson of Coats's House
On June 22, 2014, Chenot drove Jones and Sandon from her house to Coats's house in her white Chevy pickup truck. Since Coats did not want Chenot at her house at that point, Chenot dropped Jones and Sandon off and drove away. Over the next couple of hours, as Sandon was napping, Chenot called Jones's cell phone and Coats's home phone more than 20 times. Jones ignored the calls. He wanted Chenot to cool down as she had become upset when Jones told her she was not welcome at his mother's house. Chenot also sent Jones the following text message: "Always talking [shit] about everyone else not turning on their phone, but look at you still thinking I'm wrong. Are you having fun with Tamara because that whore is next. Let's see how her apartment can take a fire."
Jones testified that Tamara is his "13-year-old son's mother."
After Sandon woke up from his nap, Jones left Coats's house to visit his sister, Acacia Coats (Acacia), at her house "just outside of town," about five miles away. As Jones drove towards Acacia's house, he "crossed paths" with Chenot, who was headed in the opposite direction in her white Chevy pickup (Jones testified that Chenot did not see him). About 10 minutes later, Jones arrived at his sister's house. Before he had even walked in the door, his aunt—who lived about 100 yards behind Coats's house—called to inform Jones and his sister that their mother's house was on fire. By the time Jones got to Coats's house, "the place was already burned."
Danny Mayes, who lived 50 to 100 feet in front of Coats's house and knew both Jones and Chenot well, was lounging at home on the day of the fire. That day, Mayes saw Jones depart from Coats's house with Sandon, in his Jeep. At that point, there was no one at Coats's house. Mayes then "heard a truck coming." It turned out to be Chenot in her "Chevy pickup." Chenot drove past Mayes's home towards Coats's house; Mayes saw the "the dust going up" in Coats's driveway. About five minutes later, Chenot drove back out of the driveway, "gassed it," and hit the highway with her tires "chirp[ing]." About 20 seconds after Chenot left, Coats's house "blew up" in a "[h]uge" explosion, which "[s]hook out the windows" of Mayes's home. Mayes heard several additional explosions and saw that Coats's house was "fully engulfed in flames." Mayes called the fire department and a fire engine arrived on the scene at 5:55 p.m. The house had mostly burned down by then.
Chenot's Admission of Culpability
On the day of the fire, at approximately 6:30 or 7:00 p.m., Savannah Johnson was cooking dinner for her children at her home in Midpines. Her neighbor Megan Berry was visiting her. Johnson heard helicopters overhead and learned from Facebook of a fire on Colorado Road. All of a sudden, Chenot "barged" into the house, looking for Berry, a close friend of hers. Johnson knew Chenot as they had gone to school together, but they were not friends.
At Johnson's request, Berry and Chenot went out to Johnson's driveway, where Chenot's silver car was parked (Chenot owned a Honda Civic in addition to her pickup truck). For the next hour and a half, Berry and Chenot sat on Chenot's car, talking and drinking beer and Bacardi. Johnson overheard parts of their conversation as she came outside several times, either to smoke a cigarette or to make sure the two of them were not being too loud.
Johnson testified that Chenot told Berry that she "blew up [Coats's] house." Chenot also said that she unhooked the propane line to the home and was surprised the house "blew up in no time." Chenot repeatedly said that "[Coats] had demons and that she hated [Coats]." Chenot was worried about her son because she was not sure where he and Jones were when the house exploded. The parties stipulated that Johnson would also have testified that, Berry, upon waking up after having passed out drunk the night before, told Johnson: "Oh, my god, Savannah, [Chenot] blew up the fucking house."
Johnson testified that Chenot and Berry also discussed "[a] tree that had been litten [sic] on fire a couple days prior." "They were saying they didn't know who did it" but Coats had accused Chenot of lighting that fire.
After a few days, Johnson told local authorities about what she had overheard. Before providing the information, Johnson asked sheriff's deputies whether the father of her children could win an early release from jail, where he had a year left to serve on a sentence. The deputies told Johnson they would see what they could do in that regard. Johnson then provided the information about Chenot's confession. The father of Johnson's children did ultimately obtain an early release.
Evidence and Expert Opinion Regarding the Cause of the Fire
Mariposa County Chief Fire Investigator Harold "Hale" Nolen investigated the fire and testified as an expert on "fire investigation and propane" for the People. He arrived on scene at the same time as fire engines responding to the fire, about 15 minutes after Mayes's call for emergency assistance. Upon arrival, Nolen observed a "fully involved fire," with about 90 percent of the home already burned down. Nolan noted that a large propane tank situated on a slope above and behind the house supplied the house with propane gas. The tank was "open," and the "pigtail" hose leading from it to "the regulator mounted on the line going to house" was disconnected and lying on the ground. Vise grips and monkey wrenches were found near the tank. The tank had a capacity of 120 gallons and was about 45 percent full before the fire broke out. Souza Propane owned and supplied the tank; it was last serviced in January 2014, when the connection to the regulator was checked and no leaks were detected. Coats had not touched the tank since then.
As part of his investigation, Nolan observed burn marks that indicated the fire had spread outwards from the home. Furthermore, charring underneath the home showed that the fire originated by the floor and "came up into the house." The fact that the back of the house was most badly burned showed that the fire burned the longest at the back of the house (where the gas was coming from). Nolan ruled out the possibility of an electrical fire because wire arcing was present in multiple locations and electrical fires typically caused wire arcing only near the fire's origin point. Using an accelerant detector, Nolan also ruled out the possibility that the fire was caused by an accelerant. Finally, he ruled out the possibility of a wildland fire since the fire had spread outwards from the house itself.
Nolan opined that the fire was a propane-related explosion, caused by an act of arson, i.e., the propane line to the house was disconnected at the regulator by a human hand. He said the propane line could be disconnected in "less than a minute" with "four turns" of a monkey wrench. Nolan explained that, "[w]ith that line disconnected, laying alongside the tank ... gas would roll down that hill," go underneath the house through foundation vents in the side of the house, and pool under the house. He added that eventually, through a floor vent, it would "get to the open flame that [was] in the hot water tank" and cause a "massive explosion." Nolan estimated it would take between five to 10 minutes for the propane to ignite after the propane line was disconnected. Nolan summed up his expert opinion: "I believe the propane tank off-gassed, sent gas underneath the house, and [the gas] eventually found the pilot light from the [hot water] tank[,] causing the gas to ignite."
Nolan noted that even though the propane tank was disconnected from the regulator, the line from the regulator to the house would have had enough gas in it for the pilot light to continue burning "for quite some time." Nolan also confirmed that the hot water heater at the house was "an open-flame heater."
Defense Evidence
The defense called Acacia Coats, Coats's daughter and Jones's sister, as a witness. Acacia testified that upon hearing that Coats's house had burned down, she immediately called 911 and told the dispatcher that Chenot was responsible for the fire. Acacia's accusation was not based on personal knowledge. Rather, she thought Chenot was responsible in part because she believed Chenot had started a brush fire outside Coats's house a few days earlier.
The defense next called Megan Berry as a witness. Berry testified that Chenot came to see her when Berry was at Johnson's house on the evening of June 22, 2014. The two drank enough that Berry subsequently "passed out." Berry testified that Chenot did not tell her that she had burned down Coats's house or disconnected a propane line. Berry eventually admitted that Chenot had sent her a text message on the day of the fire to the effect that a fire had occurred and Chenot wanted to see Berry. Also, when Chenot was feuding with Coats over Sandon's blanket, Chenot had sent Berry a text stating, "Watch what I do. Fuck that bitch."
Michael Smith, a retired Yolo County fire investigator, testified as an expert on fire investigation for the defense, with the caveat that he was not an expert in propane. Smith did not conduct an onsite investigation; rather he examined photographs of the scene and documentation concerning the fire.
Smith was of the view that the fire was not caused by a propane explosion. He explained his reasons. First, it did not appear that gas was emitted from the propane tank because the gravel surrounding the tank was undisturbed and no one heard a high whistling sound, as would normally be the case. There was also no evidence, such as glass shards, showing that the windows of the house were blown out by an explosion. Smith also believed that if the propane line was disconnected, gas flowing to the pilot light would automatically have been cut off, causing the pilot light to go out. Finally, Smith believed it would take 30 to 45 minutes for the propane to flow under the home and come into contact with the pilot light in the hot water heater.
Smith concluded that the cause of the fire was undetermined as he could not rule out a number of possible causes. He acknowledged that his opinion would be different had he known that Chenot had admitted to unhooking the propane line, something he was not made aware of. He iterated, however, that in his view the evidence did not show that the propane line was unhooked before the fire.
DISCUSSION
I. Ineffective Assistance of Counsel
Chenot argues her arson conviction must be reversed because defense counsel was ineffective. Specifically, she faults counsel for presenting evidence to show that Acacia and Coats blamed Chenot for starting the earlier scrub-brush fire or "grassfire" at the end of Coats's driveway; she also faults counsel for failing to object when the prosecution introduced such evidence. Chenot contends this evidence would reasonably lead the jury to conclude that she had a propensity to commit arson and, in turn, to convict her for the charged arson on that basis.
The People respond that counsel made a reasonable strategic decision to present this evidence and to allow the prosecution to do so as well. The People point out that the defense theory was that Acacia and Coats reflexively blamed Chenot for the fire resulting in the instant arson charge, just as they blamed her for the earlier scrub-brush fire. Counsel further sought to show that Acacia and Coats tried to influence, ab initio, any official investigation of the fires, with the goal of having Chenot held culpable for setting both fires. Counsel's ultimate strategy was to undermine the integrity of the official fire investigation that was the lynchpin of the prosecution's case, by suggesting that the deck was stacked against Chenot on account of baseless allegations made by Acacia and Coats.
We agree with the People that defense counsel made a reasonable tactical decision to present evidence related to the earlier grassfire and that, in any event, the evidence was not prejudicial.
A. Background
Evidence regarding the earlier grassfire at the end of Coats's driveway was introduced in the course of the prosecution's case-in-chief. Coats herself mentioned "the grassfire" in the course of her direct examination by the prosecutor. Coats explained that on June 19, 2014, she had unplugged her phone because Chenot was incessantly calling her. She said she plugged the phone back in after the grassfire because she had missed calls from her sister, who had been trying to call her to alert her about the fire. On cross-examination, Coats explained that she had told firefighters that Chenot had set the grassfire because Chenot had been threatening her all day and was her "enemy."
Defense counsel raised the issue of the grassfire with Danny Mayes, on cross-examination. Regarding the grassfire, Mayes explained that the authorities "didn't know who did it," but Coats summarily accused Chenot of starting it. Defense counsel asked: "So she was accusing my client of two fires at her house; is that correct?" Mayes answered: "Well, yes." The prosecutor objected to Mayes's testimony on hearsay and relevance grounds.
Finally, the grassfire was referenced by Savannah Johnson. Johnson described the conversation between Chenot and Berry in Johnson's driveway shortly after the fire that gutted Coats's house. Johnson testified that Chenot and Berry had initially discussed "a tree that had been litten [sic] on fire a couple days prior." Johnson noted that Chenot and Berry "were saying they didn't know who did it" but Coats had accused Chenot of starting it.
In the defense case, counsel called Acacia Coats as a witness. The questioning centered on a 911 call that Acacia had placed immediately after discovering that Coats's house had burned down. Acacia testified that she told the dispatcher that Chenot had burned down the house after a previous attempt to burn it down by starting a fire at the end of the driveway. Counsel elicited testimony to the effect that Acacia had not seen Chenot do anything related to the fires; nor had Chenot told her that she had started the fires. Counsel then attempted to elicit testimony to the effect that Acacia blamed Chenot based on "feelings" rather than on "facts." Acacia's response was unexpectedly blistering:
"Other than ... [m]y brother leaving the property ... he sees [Chenot] driving towards it, and, then, what, 15 minutes later she's the last person seen, and within a few minutes, the house blows up.
"I think all the evidence-and then Savannah admitting what she heard. My mother-we have no connection to Savannah. I don't even know her. Why would she do that for us? She's not getting a benefit. She's helping us. All the evidence points at Kim Chenot.
"We have no enemies. She's affected so many lives, so many memories. That's where I grew up. That's the only house I've been in. I have no reason to lie. I wouldn't [suggest] that she did it if we don't know. We know 100 percent that she did it. We have no enemies. My mother has no enemies besides Kim Chenot. And with all the calls. How many calls? Over 30 phone calls. She called my mother within how many days? Just a couple days. Yes, we know she did it."
B. Analysis
To establish constitutionally inadequate representation, a defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (People v. Haskett (1990) 52 Cal.3d 210, 248; People v. Ledesma (1987) 43 Cal.3d 171, 216-218; also see Strickland v. Washington, supra, 466 U.S. at pp. 687-696.) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) When reviewing an ineffective assistance of counsel claim, "there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Here the case against Chenot was strong and viable defense theories appeared scarce. However, because the prosecution's case was circumstantial, defense counsel made a reasonable tactical decision to attack the foundation of the investigation that led to the instant arson charge. Counsel sought to portray the investigation as fundamentally flawed on account of a preconceived notion, on the parts of the complaining witness and her family and, in turn, the authorities, that Chenot was to blame for multiple fires on Coats's property.
In order to develop this theory, counsel elicited testimony to show that Coats considered Chenot an "enemy," instantly blamed Chenot for the grassfire at the end of her driveway, and, by telling firefighters that Chenot had caused that fire, had tried to influence a potential investigation before one was even launched. Similarly, in calling Acacia as a witness, counsel sought to show that upon hearing of the house fire from her aunt (who lived next door to Coats), Acacia immediately called the police and, without any evidence at that point, accused Chenot of starting that fire as well as the earlier grassfire. Counsel strategically elicited testimony from Acacia to demonstrate that she hated Chenot, reflexively blamed Chenot for two fires, and sought to manipulate a potential investigation into the house fire by accusing Chenot before fire engines had even arrived to put out the fire. These points, which counsel succeeded in making, were clearly helpful to the defense.
However, in calling Acacia, a hostile witness, to testify in the defense case, counsel obviously took a gamble. In view of the theory of defense, it was ultimately a reasonable gamble. The fact that counsel possibly lost the gamble when Acacia gave a damaging commentary from the witness stand does not mean that counsel provided constitutionally inadequate representation. (See People v. Jones (2003) 29 Cal.4th 1229, 1254 ["'"courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight"'"]; People v. Frye (1998) 18 Cal.4th 894, 982, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["'Lack of success does not reflect incompetence of counsel.'"]; People v. Fosselman (1983) 33 Cal.3d 572, 581 [counsel's tactical decisions lead to reversal on grounds of ineffective assistance "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].)
Furthermore, Chenot has not shown that she was prejudiced by counsel's tactical decision to present the complained-of evidence. Specifically, it is not reasonably probable that absent the evidence Chenot now complains about, the outcome would have been more favorable for her. The prosecution presented evidence that Chenot had a motive to harm Coats, i.e., Chenot was furious at Coats for trimming Sandon's blanket and had threatened to kill Coats. Danny Mayes saw Chenot drive up to and then leave Coats's house minutes before it exploded. Savannah Johnson testified that she heard Chenot tell Berry that Chenot had unhooked the propane line leading to Coats's house and that the house exploded surprisingly quickly thereafter. Investigator Nolan described a comprehensive fire investigation and provided a convincing expert opinion that the fire was an arson caused by a propane explosion, which occurred when the propane line to the house was manually disconnected.
In sum, Chenot's claim of ineffective assistance fails under both the deficient performance as well as the prejudice prongs of the test for evaluating ineffective assistance of counsel claims. II. Sentencing Issues
A. Prior Prison Term Enhancement
Chenot argues, and the People agree, that the trial court erroneously imposed a prior prison term sentence enhancement that was neither charged nor proven against Chenot. We agree with the parties that the enhancement was erroneously imposed and, accordingly, grant the parties' request to strike it. (See § 1170.1, subd. (e) ["All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."]; People v. James (1978) 88 Cal.App.3d 150, 161 ["In order to enhance the term of imprisonment for prior prison terms, they must be pleaded and proven."].)
B. Fines and Fees
Chenot also challenges the fines and fees imposed at sentencing, arguing they must be stricken because the trial court did not orally pronounce specific fine and fee amounts. The People respond that the trial court's oral pronouncement to the effect that fines and fees were imposed as set forth in the probation report was sufficient. We agree with the People.
Here the court stated that the fines and fees were "ordered as set forth in the [probation] report." The probation report itemized the applicable fines and fees as follows: (1) $80 in court security fees (§ 1465.8); (2) $300 in presentence investigation report fees (Mariposa County Bd. of Supervisors Res. No. 09-603); (3) $10,000 in a restitution fine (§ 1202.4); and (4) $10,000 in a conditional parole revocation fine (§ 1202.45). The abstract of judgment correctly specified and itemized the fines and fees imposed by the court.
A trial court is required to orally pronounce a judgment, including fines. (People v. Santos (1985) 171 Cal.App.3d 67, 70, disapproved on other grounds by People v. Cruz (1988) 44 Cal.3d 1247, 1250; People v. Hong (1998) 64 Cal.App.4th 1071, 1080 ["A judgment includes a fine."].) Here the trial court did orally pronounce it was imposing fines and fees as set forth in the probation report. The court's intention was expressly and clearly stated, and the applicable fines and fees were correctly specified and itemized in the abstract of judgment. (See People v. Sharret (2011) 191 Cal.App.4th 859, 864 [trial court's generic reference to "'penalty assessments'" proper where the constituent fines and their corresponding amounts were itemized in the abstract of judgment].) Chenot has cited no authority establishing that the court's oral pronouncement was insufficient. Accordingly, we detect no error in the court's imposition of fines and fees, and, even assuming the court erred, the error was harmless.
Chenot cites People v. High (2004) 119 Cal.App.4th 1192, 1200 (High) and People v. Fernandez (1990) 226 Cal.App.3d 669, 678-679 (Fernandez). High is inapplicable because it addressed a situation where the court clerk listed an aggregate fee amount (instead of itemized fees and assessments) on the abstract of judgment, making far harder the task of state agencies responsible for collecting the various fees and assessments. Fernandez is inapplicable because it addressed a situation where the trial court incorporated by reference aggravating sentencing factors reflected in a pro forma check-the-box list in the probation report, rather than stating specific, tailored reasons for imposing the aggravated term on the record as required by section 1170, subdivision (b) and California Rules of Court, rule 4.406. --------
DISPOSITION
The prior prison term sentence enhancement imposed at sentencing is stricken. The trial court is directed to prepare an amended abstract of judgment reflecting this correction and to forward it to the appropriate correctional authorities. In all other respects, the judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
GOMES, J.