P. v. Dabney

 

 

 

 

 

 

 

 

 

 

 

 

Filed 10/1/13  P. v. Dabney CA2/3

> 

> 

> 

> 

> 

> 

> 

> 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   Erica Denise Dabney,               Defendant and Appellant.

B247412         (Los Angeles County       Super. Ct. No. VA098564)

 

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Roger Ito, Judge. 
Affirmed.

 

            Law Office
of Margaret E. Dunk and Margaret E. Dunk for Defendant and Appellant.

 

            No
appearance for Plaintiff and Respondent.

 

            Defendant
and appellant, Erica Denise Dabney, appeals from the judgment entered following
revocation of probation previously granted after entry of her plea of no
contest to the serious felony of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),href="#_ftn1" name="_ftnref1" title="">>[1]
during the commission of which she inflicted great bodily injury on the victim,
not an accomplice to the offense (§ 12022.7, subd. (a)).  The trial court sentenced Dabney to four
years in state prison.  We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

            1.  Facts.href="#_ftn2" name="_ftnref2" title="">[2]

            At
approximately 11:00 p.m. on November 18, 2006, Dabney went to
the home of Denise Johnson at 9514 Kalmia Street
in Los Angeles.  Dabney, accompanied by her sister and her
son, walked up to Johnson’s house and, when Johnson answered the door, Dabney
asked Johnson where her children were. 
When Johnson told Dabney her children were not at home, Dabney, her
sister and her son entered Johnson’s home and Dabney, while in Johnson’s living
room and using a “strong[] voice,” asked Johnson what had happened.  Johnson told Dabney her children had told her
Dabney’s daughter had stolen Johnson’s earrings.  When Dabney then told Johnson she had “the MF
earrings,” Johnson first asked Dabney what she was doing with them, then asked
Dabney’s sister and son to leave the house. 
Johnson believed that, as two women, she and Dabney could talk about it
and work out the problem.  They “didn’t
need her sister and [her] son in there.” 
However, Dabney’s sister and son did not leave the house.  They, instead, walked into a hallway.  Dabney remained in the living room, reached
into her shoe and started “swinging” at Johnson.  Johnson then swung back at Dabney.

            As the two
women became engaged in a fist fight, Johnson felt a “strong punch in [her]
arm,” then a pain as though Dabney had used a “strong knife” to cut Johnson in
the shoulder.href="#_ftn3" name="_ftnref3"
title="">[3]  Although Johnson did not see anything in
Dabney’s hand, when she reached up to her shoulder, she realized she was
bleeding.  Johnson then noticed she was
not only bleeding from her shoulder, but also from three cuts on her upper left
arm.  Dabney told her sister she had
gotten the “[b]itch” then, accompanied by her sister and son, ran from the
house.  Although she had seen her
retrieve something from her shoe, “from the beginning of the fight to the end
of the fight” Johnson had not seen an object in Dabney’s hand.

After Dabney, her sister and her
son left Johnson’s house, Johnson’s husband called 911.  Paramedics arrived and transported Johnson to
the hospital where she received stitches for all four wounds.  In total, Johnson received “[a]bout 17”
stitches.  After receiving the stitches,
Johnson was required to attend physical therapy for approximately one and
one-half years.  The injuries inflicted
by Dabney had affected Johnson’s ability to lift her arm and to “pick things
up.”  In addition, Johnson suffered pain
in her arm and was required to take Motrin and “Tylenol three.”  Johnson still suffers from pain in her arm
when it is cold.

            2.  Procedural
history.

            On October 15, 2009, a one count
information was filed in which it was alleged Dabney committed the crime of
assault with a deadly weapon in violation of section 245, subdivision
(a)(1), a felony.  It was further alleged
that, during the commission of the assault, Dabney “personally inflicted great
bodily injury upon Denise Johnson, not an accomplice to the [assault], within
the meaning of” section 12022.7, subdivision (a), causing the assault to be a
serious felony within the meaning of section 1192.7, subdivision (c)(8).

            After the href="http://www.fearnotlaw.com/">preliminary hearing, counsel for Dabney
made a motion to dismiss the matter, asserting the prosecutor had presented
insufficient evidence to support the charges. 
Counsel argued it seemed “like a mutual combat situation where the
victim never saw any weapon and just suffered injuries that could have been
caused by a ring or by other persons present . . . .”  The trial court indicated that “under the
statute a deadly weapon is any object, instrument or weapon, which is used in
such a manner as to be capable of producing and likely to produce death or
great bodily injury.  So whether it’s a
knife or ring, it’s capable of producing great bodily injury.”  The court believed the object used by Dabney
“satisfie[d] the statute.”  The
prosecutor indicated if the court was uncomfortable with the allegation the
assault had been committed with a knife, the information could be amended to
allege the injuries had been inflicted 
with a “metal object.”  The trial
court granted the motion to amend, then determined there was sufficient
evidence to hold Dabney to answer to the charges.

            At
proceedings held on January 8, 2010,
Dabney indicated she wished to withdraw her earlier plea of not guilty and
plead no contest to the alleged charges. 
After being informed the alleged crime amounted to a strike within the
meaning of the Three Strikes law and she faced a maximum term of four years in
state prison, Dabney indicated she still wished to plead no contest to the
charge alleged in count 1 of the information. 
In exchange, Dabney was to be sentenced to four years in prison, the
sentence was to be suspended and she was to be granted three years probation,
including 60 days of work at Caltrans.

            Before
taking her plea, the prosecutor advised Dabney she had the right to a jury
trial, the right to confront and cross-examine witnesses who testified against
her, the right to use of the court’s subpoena power to secure witnesses to
testify on her behalf at no cost to her, and the href="http://www.mcmillanlaw.com/">right to remain silent.  After indicating she understood and was
willing to “give up each of those rights,” the prosecutor informed Dabney there
were consequences to her plea.  The
prosecutor stated:  “You’ll be placed on
probation.  If you violate that
probation,” “you could go to state prison for four years . . . .”  In addition, the prosecutor advised Dabney
her plea could “be used to enhance [her] sentence on any future case.  In fact, [she was] pleading to a strike.  So if [she] pick[ed] up a felony case in the
future, it [could] be used to double the sentence on that case.”

            After
indicating she understood the consequences of her plea, Dabney pled no contest
to “the charge in count 1, [a] violation of . . . section 245, assault with a
deadly weapon,” and admitted having used a weapon, “a metal object,” during the
offense.  The trial court then referred
to a form which Dabney had filled out indicating she had understood and waived
her constitutional rights, understood the consequences of her plea and was
“freely and voluntarily” entering her plea of no contest to the alleged charge
and admitting any special allegations or enhancements.  After conferring with her counsel for one
last time, Dabney indicated she still wished to enter the no contest plea and
admit the use of a weapon.  The trial
court accepted the plea, adopted the findings set forth in the form and found
Dabney had “expressly, knowingly, understandingly, and intelligently waived her
constitutional rights and [found Dabney’s] pleas and admissions [had been]
freely and voluntarily made with an understanding of the nature and
consequences.”  The trial court further
found there was a “factual basis for the plea,” accepted the plea and found
Dabney guilty.

            The trial
court sentenced Dabney to the “high term” of four years in state prison,  suspended imposition of sentence with the
exception of the 21 days of presentence custody credit which she had served and
for which she was given credit, then granted Dabney three years probation under
various terms and conditions, including that she “obey all laws, rules, and
orders of the court and of the Probation Department.”  In addition, she was to pay a $30 court
security fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment
(Gov. Code, § 70373), a $200 restitution fine (§ 1202.4, subd. (b)) a
stayed $200 probation revocation restitution fine (§ 1202.44) and restitution
to the victim in an amount to be determined by the Probation Department.  The trial court then dismissed all remaining
counts and allegations.

            At a
hearing held on December 16, 2010, the trial court indicated it was in receipt
of a “derogatory [probation] report” which indicated Dabney “had some issues
regarding anger management.”  The court
continued, stating it was inclined “to take the admission [that day], order
[Dabney] to complete [an] anger management program, and . . .
admonish her that any additional violations, especially involving force and
violence, or any anger issues, [would] result in state prison.”  Counsel for Dabney responded that “[t]hat
would be fine” and “[t]hat would be [Dabney’s] inclination.”

            After
waiving her right to a formal probation violation hearing, Dabney admitted she
was in violation of her probation.  The
trial court then revoked probation, reinstated it and ordered Dabney to “enroll
[in] and complete an anger management program as directed by the Probation
Department.”  In her support, Dabney’s
counsel informed the trial court she was “already enrolled in [a] program [and]
. . . involved in a lot of other support programs trying to address these
issues.”

            At a
hearing held on October 11, 2012, the trial court noted Dabney had not
performed her “60 days of Caltrans.” 
Dabney explained to the court that when, three weeks earlier, she had
gone to Caltrans, she was told she could not do the work because she suffers
from scoliosis.  Dabney was told to
report to her probation officer and have the condition of probation changed
from Caltrans to community service.  The
trial court directed Dabney to return in three weeks with medical evidence
indicating she was unable to work at Caltrans. 
The court indicated, after viewing such documentation, it would change
the requirement to community service.

            On November
9, 2012, the trial court indicated, because she 
had not completed her community service, it would “modify and extend”
Dabney’s probation to January 14, 2014. 
In the interim, Dabney was ordered to enroll in and complete 60 days of
community service.

            Dabney again
appeared before the trial court on January 24, 2013.  Dabney’s counsel indicated the issue at this
proceeding was whether Dabney had “picked up a new arrest.”  Counsel stated he “[did not] know what . . .
[was] going on with that.”  The
prosecutor then indicated “the concern from the People’s perspective . . . [was
that Dabney] initially refused to do a breath sample and then subsequently
complied and blew a point 19 and a point 18 and then . . . declined any
[further] tests.”  In addition, the
probation report indicated “she ha[d] prior under-the-influence issues.”  Under these circumstances, the prosecutor
requested that Dabney be remanded and a formal probation violation hearing
held.  The trial court granted the
prosecutor’s request, remanded Dabney without bail, ordered a supplemental
probation report and set the matter for a hearing to be held in February 2013.

            At the
February 7, 2013 proceedings, the trial court recognized Dabney had been
charged with driving under the influence of alcohol.  Accordingly, the court set a formal probation
violation hearing for March 7, 2013.

            At the
formal probation violation hearing held on March 7, 2013, the trial court
indicated Dabney had received notice regarding the nature of the violation,
“which was specifically a new arrest for D.U.I.”  The court noted, although the driving under
the influence case had not yet been litigated, the People intended to proceed
with the hearing on the probation violation. 
The People called as a witness the officer who had arrested Dabney for
driving under the influence.  California
Highway Patrol Officer Alexis Magana had observed Dabney drive onto the
northbound 101 Freeway.  As Dabney
“transition[ed] from [the] northbound 101 to the westbound 101, [her] vehicle
drifted from the number three lane to the number two lane.”  She then “drifted out of the lane to the
right and then back into the number two lane.” 
As Dabney had committed a traffic violation, the officer followed her as
she exited the freeway, then initiated a traffic stop.  When the officer approached Dabney’s vehicle
and spoke with her through the open driver’s side window, she detected the
“strong odor of alcohol” and noted Dabney had “bloodshot, watery eyes”  When Magana then asked Dabney for her
driver’s license, Dabney told her she did not have one.  Dabney, however, admitted she had been at a
party and had been drinking.  When the
officer asked Dabney to get out of her vehicle, “[h]er gait was slow and
unsteady” and she was unable to pass various field sobriety tests.  After the officer then performed a “field
breathalyzer” test, she concluded Dabney “was driving while under the influence
of an alcoholic beverage.”

            When
Officer Magana asked Dabney if she would submit to a blood, breath or urine
test, Dabney initially stated she wished to have her doctor or lawyer
present.  However, after Magana
transported Dabney to the police station in her patrol car and Dabney spoke
with the sergeant there, she agreed to take a breath test.  The results of the test indicated Dabney had
a blood alcohol level of .19 or .18. 
These results were slightly lower than those Magana had obtained in the
field.

            In addition
to Officer Magana’s testimony, the People submitted as evidence of Dabney’s
failure to comply with the terms of probation an addendum to the original
probation report which indicated Dabney had failed to provide proof of having
enrolled in community service.

            Dabney
testified on her own behalf.  She stated
that on the night of her arrest, a friend had initially been driving the
car.  When her friend began “swerving,”
Dabney became frightened and she instructed her friend to pull to the side of
the road.  The friend did so and Dabney,
who believed she could do a better job of driving, got into the driver’s seat,
drove to the nearest exit, then pulled off the freeway.  As she did so, the officer pulled her
over.  Before she was placed under
arrest, it had not occurred to Dabney that she should not drive because she had
no valid license and had been drinking alcoholic beverages.

            Dabney
admitted she had not completed the ordered community service.  Although she had gone to the Community
Service Department, because she had only half the amount of cash necessary to
enroll, the Department had rejected her.

            Dabney
remembered that, at a hearing held on December 16, 2010, the trial court had
admonished her “that if [she] committed another act of violence or force, [she
was] going to state prison.”  In
addition, Dabney admitted she had violated the law by driving with “a
suspended/revoked” license.  Moreover,
she had been convicted in another jurisdiction of driving with a suspended
license in violation of Vehicle Code section 14601.2, subdivision (a) and had
been placed on probation for the offense.

            When
asked  if she was “aware that [she had]
made a promise to this court that [she] would obey all laws,” Dabney responded,
“Under a violent crime, yes.”  When the
prosecutor informed Dabney it was all laws, she indicated, “I was confused
about that.  I thought it was for
violent.  [¶] . . . [¶] [] I did not
understand . . . .  I
thought it was force and violence.  I
didn’t know it could have been a misdemeanor.”

            After
Dabney completed her testimony and the parties argued, the trial court stated
that, approximately six months after she had been placed on probation in this
matter, Dabney had “pick[ed] up a case for driving on a suspended license and
[had been placed] on probation.”  The
court indicated it had not been aware of that case.  The trial court then noted that in December
2010, Dabney had admitted committing vandalism against a family member.  At that time, the court had ordered Dabney to
complete an anger management program and she was “admonished that any
additional violations, especially
involving force and violence or any anger issue, [would] result in state
prison.”  (Italics added.)  The court continued, “I didn’t tell her,
look, you can commit any other kind of crime you want, so long as [it does not
involve] force and violence . . . .”

            The trial
court allowed Dabney to personally make a number of comments.  She stated, with regard to her most recent
arrest for driving under the influence, that she had not intended to break the
law.  The trial court, however, found “by
[a] preponderance of the evidence that [Dabney was] in violation of her grant
of probation.”  The court then imposed
the previously stayed term of four years in state prison.  The trial court awarded Dabney presentence
custody credit for a total of 127 days then advised her of her right to appeal.

Dabney filed a timely notice of
appeal on March 7, 2013.

CONTENTIONS

            After
examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent
review of the record.

            By notice
filed June 14, 2013, the clerk of this court advised Dabney to submit within 30
days any contentions, grounds of appeal or arguments she wished this court to
consider.  With this court’s permission,
Dabney filed a supplemental brief on August 1, 2013. 

In her brief, Dabney first contends
she was informed by the trial court she would be considered to be in violation
of probation only if she committed an offense involving “anger,” “force” or
“violence.”  The record, however, reveals
otherwise.  After Dabney entered her
plea, the trial court sentenced her to four years in state prison, suspended
imposition of sentence and granted Dabney three years probation under various
terms and conditions, including that she “obey all laws, rules, and orders of the court and of the Probation
Department.”  (Italics added.)  Then, at a hearing held on December 16,
2010, the trial court indicated it was in receipt of a “derogatory [probation]
report” which indicated Dabney “had some issues regarding anger
management.”  The court continued,
stating it was inclined “to take the admission [of a probation violation that
day], order [Dabney] to complete the anger management program, and
. . . admonish her that any
additional violations, especially
involving force and violence, or any anger issues, [would] result in state
prison.”  (Italics added.)  At no time did the trial court advise Dabney
that she could be found to be in violation of probation only if she committed
an offense involving anger, force or violence. 
The trial court clearly indicated she could be found in violation of
probation if she violated any laws,
rules or orders of the court or Probation Department.

Dabney also contends she should
have been given presentence custody credit against her state prison term for
the time she spent on probation.  The
contention is without merit.  In the last
several years, the Legislature has passed bills providing for more generous
awards of presentence conduct credits. 
(See People v. Garcia (2012)
209 Cal.App.4th 530, 534-535.) 
However, under no circumstances may a defendant be given credit for time
during which he or she was not in “custody.” 
(§ 2900.5, subds. (a)-(g); see People
v. Davenport (2007) 148 Cal.App.4th 240, 245, quoting People v. Darnell (1990) 224 Cal.App.3d 806, 809 [“It is not the
procedure by which a defendant is placed in a facility that determines the
right to credit, but the requirement that the placement be ‘custodial,’ and
that the custody be attributable to the proceedings relating to the same
conduct for which the defendant has been convicted.  [Citations.]”].)  Here, Dabney was given presentence custody
credit for all the time she spent in custody with regard to this case.  She is entitled to no additional credits.

 

 

REVIEW ON APPEAL

We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

>DISPOSITION

The judgment is affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

> 

> 

> 

> 

>                                                                                    KITCHING,
J.

 

 

We concur:

 

 

                        KLEIN, P. J.

 

 

 

 

 

                        ALDRICH, J.