Filed 4/9/18 P. v. Denisoff CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTINA A. DENISOFF,
Defendant and Appellant.


A150469

(Contra Costa County
Super. Ct. No. 51612795)


A jury convicted Christina A. Denisoff of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4) (Count 2)) and assault with a deadly weapon (§ 245, subd. (a)(1) (Count 3)). The jury found true sentencing enhancement allegations that Denisoff personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally used a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced Denisoff to two years in state prison.
Denisoff appeals. She contends: (1) the court erred by excluding the victim’s prior inconsistent statement as impeachment evidence; and (2) she was improperly convicted of both counts of assault for “identical conduct involving a single victim.” We conclude Denisoff’s conviction for assault by means of force likely to produce great bodily injury is necessarily included within her conviction for assault with a deadly weapon. (See In re Jonathan R. (2016) 3 Cal.App.5th 963 (Jonathan R.).) Accordingly, we vacate Count 2 and strike the enhancement allegations alleged in Count 2, and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Count 2 of the information charged Denisoff with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and alleged enhancements for personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally using a deadly weapon (§ 12022, subd. (b)(1)). Count 3 of the information charged Denisoff with assault with a deadly weapon, a knife, (§ 245, subd. (a)(1)) and alleged an enhancement for personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
Prosecution Evidence
In 2016, Victoria Ogden lived in a house in Antioch with her adult son, Daniel. There was a fence on the backyard and right side of the house. Behind the house was a shed, accessible through a gate. Daniel spent time in the shed, working with power tools. Daniel and Denisoff were in a dating relationship. They used methamphetamine together, and they argued frequently. Denisoff was homeless; she sometimes spent the night with Daniel.
Victoria did not approve of Daniel’s relationship with Denisoff, because Denisoff had tried to take Daniel’s tools, and had passed out in a “drunken stupor” near the house. Denisoff also climbed the fence and entered the backyard without permission and often refused to leave the house. Once, when Denisoff was asked to leave, she threatened, “ ‘I’ll be back and I won’t come alone.’ ” In late June 2016, Daniel and Denisoff argued about their relationship. Denisoff wanted to be with Daniel “constantly, . . . to the point where it was unhealthy.” She often peered through a neighbor’s fence into Daniel’s bedroom window. Daniel did not want to be Denisoff’s boyfriend.
At midnight on June 23, 2016, Daniel smoked methamphetamine. At approximately 2 a.m. on June 24, Daniel saw Denisoff “peering through” the fence. She appeared under the influence of methamphetamine. Daniel told Denisoff to “[b]e quiet” and to “come through the side gate.” She complied, and they went into the shed. Daniel knew Denisoff was “mad about something” but “she didn’t say a word to [Daniel] and [he] didn’t say a word to her.” The shed was “very quiet.”
About 10 minutes later, Daniel noticed Denisoff holding a “folding knife” with a five-or-six-inch blade and a faded blue handle. Denisoff sharpened the knife with Daniel’s tools. When Daniel asked Denisoff, “ ‘[w]hat are you doing that for,’ ” Denisoff “grinned” but did not “say anything.” Daniel told Denisoff: “ ‘You got to get ready to go because my mom is asleep and you’re not even supposed to be here.’ ” Denisoff looked “disgusted” and ignored him. Then Daniel said, “ ‘You got to go now’ ” and walked Denisoff to the gate. When Daniel opened the gate, Denisoff said “something like . . . she was tired of being treated this way.” Daniel said, “I don’t want any drama” and asked Denisoff to leave. He shut the gate and returned to the shed.
About fifteen minutes later—at approximately 3:30 a.m.—Daniel heard Denisoff “talking to herself.” Daniel walked to the gate and told Denisoff to leave. As Denisoff tried to push her way through the gate, she said she was “so tired of being treated the way [Daniel] treated her.” Daniel tried to block her by putting his hands on her shoulder, but she was bigger—and stronger—than Daniel and she “pushed her way through” the gate. Daniel did not hit or threaten Denisoff.
Daniel spent about 30 seconds trying to push Denisoff back outside the gate. During the struggle, Denisoff “stepped forward,” stabbed Daniel in the stomach, then “stepped back very quietly.” Daniel felt a “very quick” and “sharp pain,” but he did not realize he had been stabbed. Then he reached down to his stomach and felt blood. He told Denisoff: “ ‘You stabbed me.’ ” Denisoff denied stabbing him and “began to step backwards, like she was getting ready to take off.” Daniel ran into the house holding his stomach and said to his mother, “ ‘Christina stabbed me.’ ” Daniel drove himself to the hospital. As he drove, Daniel had difficulty breathing and thought he “was going to pass out.”
The stab wound penetrated Daniel’s abdominal wall and scratched his stomach. Daniel had surgery and spent seven days in the hospital. About week after returning home, he saw Denisoff outside of the house at 3 a.m., “creeping around.” Police arrived and arrested Denisoff.
Defense Evidence
Denisoff had a misdemeanor conviction for receiving stolen property. She testified Daniel was physical with her about a dozen times during their relationship—he grabbed her shoulders, pulled her hair, and pushed her. In 2015, Daniel began injecting methamphetamine and, as a result, became more aggressive. In 2014 and 2015, Denisoff often spent the night at Daniel and Victoria’s house; in February 2016, however, Victoria made it clear she did not want Denisoff around the house.
In the early morning on June 24, 2016, Denisoff received a Facebook message from Daniel, inviting her over. At about 1:30 a.m., Denisoff went to the house with all of her belongings, opened the gate, and went to the shed to wait for Daniel. Daniel arrived, and Denisoff checked her Facebook messages using Daniel’s phone. Then Denisoff “pulled out” her pocket knife—which she carried for protection—to “tighten the screw . . . that holds it where it folds because it was loose.” She tightened the screw, put the knife away, and spent about an hour with Daniel in the shed. Denisoff did not threaten Daniel with the knife.
Eventually, Daniel told Denisoff it was “getting late [and] he was going to have to go in” the house. Denisoff gathered her belongings and took out her knife because she was “getting ready to leave.” She went through the gate. The door swung shut, making a sound which infuriated Daniel. He grabbed Denisoff, shoved her into a wall, and pulled her hair. Denisoff had the knife in her hand. She put her arm out, to stop him from grabbing her. Then, “[a]ll of a sudden, [Daniel] jumped back” and said, “ ‘You stabbed me, you fucking bitch.’ ” Denisoff did not believe him; she did not intend to stab him, and “it felt like just air when [she] put [her] hand out.” Daniel punched Denisoff, and tried to prevent her from leaving. During the scuffle, Denisoff dropped the knife. Finally, Daniel went inside the house. Denisoff retrieved the knife and left.
Denisoff told a friend she “wasn’t there” when Daniel was stabbed. She also said, “I wasn’t there. I got alibis if I could get a hold of them saying I was with them asleep in their house.” Denisoff, however, decided to tell the truth at trial. Witnesses testified Denisoff was honest and not violent.
Verdict and Sentencing
The jury convicted Denisoff of Count 2, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and found both sentencing enhancement allegations true (§§ 12022.7, subd. (e), 12022, subd. (b)(1)). The jury also convicted Denisoff of Count 3, assault with a deadly weapon (§ 245, subd. (a)(1)), and found true the sentencing enhancement allegation (§ 12022.7, subd. (e)).
The trial court imposed a two-year sentence on Count 2. It imposed and stayed the one-year enhancement for personally using a deadly weapon (§ 12022, subd. (b)(1)) and imposed and stayed the three-year enhancement for personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The court stayed imposition of sentence on Count 3 and the enhancement (§ 12022.7, subd. (e)).
DISCUSSION
I.
No Error by Excluding Daniel’s Statement to Victoria
Denisoff claims the court erred by excluding Daniel’s prior inconsistent statement to Victoria.
A. Trial Testimony
Defense counsel asked Victoria whether she told a defense investigator about her conversation with Daniel after he left the hospital. Victoria testified, “I told her what happened. I said it is very succinct. She stabbed him, he went to the hospital.” Then defense counsel asked whether Daniel told Victoria he had invited Denisoff to the shed. Victoria testified, “No. He . . . told me he was in his shed, and he heard the dry ivy cracking under someone’s feet, and he didn’t know who would be outside walking around that he wasn’t aware of.”
Defense counsel cross-examined Daniel as follows:
“Q. Now, after you were released from the hospital, you told your mother what happened; is that right?
“A. I told her when I was leaving, yeah.
“Q. Okay. After you were leaving—so not that brief period of time when you were in there asking for the keys, but when you were discharged from the hospital, did you have a conversation with your mother about what had transpired?
“A. Yes.
[¶] . . . [¶] . . .
“Q. Did you tell her you were in your shed using your tools?
“A. I told her I was in the shed with her, yes.
“Q. So you told your mother that you were actually in the shed with Ms. Denisoff?
“A. Correct.
“Q. Did you tell her that you heard a noise in the ivy outside your shed before you saw Ms. Denisoff?
“A. Yes.
“Q. Did you tell her that after you heard that noise, you opened the shed door and saw Ms. Denisoff standing there outside the shed?
“A. She was on the other side of the back fence, yes.
“Q. Did you tell your mother that you asked Ms. Denisoff what she was doing and she responded, ‘I’ve had it?’
“A. Yes.
“Q. Did you tell your mother that Ms. Denisoff stabbed you in the stomach with a double knife?
“A. A double knife?
“Q. Yes.
“A. No.
“Q. Did you describe the knife to your mother as having two sharp blades joined at an end in a v-shape?
“A. No.”
B. Counsel’s Arguments
Before Denisoff testified, defense counsel told the court he wanted to call Victoria “in the defense case for impeachment” based on Victoria’s comments to the defense investigator. According to defense counsel, Victoria told the investigator Daniel was “in the shed, heard noises by the ivy, open[ed] the door to his shed, saw Ms. Denisoff right outside of his shed. [¶] And [Denisoff] said something along the lines of, ‘I’ve had it,’ and then stabbed him.” Counsel argued Victoria’s statements were “inconsistent with the version that [Daniel] gave at trial, which was to say they had a prolonged interaction in the shed before the stabbing occurred.” “[T]hus, it would be impeachment.”
In opposition, the prosecutor argued “the statement is entirely consistent.” When the court asked defense counsel to identify the inconsistency, counsel reiterated what Victoria told the investigator, and added that Daniel testified the knife had two sharp blades joined at one end, but had described the knife differently to Victoria. According to defense counsel, “what’s inconsistent is the lack of an interaction between Ms. Denisoff and Mr. Ogden and the description of the knife. And by lack of interaction, I mean that . . . period of them associating inside of the shed.”
The court stated it was “[n]ot sure if it’s really inconsistent. It’s just a more abbreviated version.” The court opined Daniel’s trial testimony was more detailed, but that level of detail did not mean his statements to Victoria were inconsistent. As an example, the court noted Daniel did not tell her there was no interaction in the shed; instead, he “just didn’t talk about that.” The prosecutor agreed with the court, noting the descriptions of the knife were not inconsistent because Victoria mentioned a “knife that opens into a v-shape,” i.e., an attempt to “describe a folding knife, which is what Mr. Ogden testified to.” The prosecutor also urged the court to exclude the testimony under Evidence Code section 352.
The court determined “it’s a sufficiently minor point, and it doesn’t even appear that it’s actually inconsistent. If that’s all you have to bring [Victoria] in for, I’m not going to require her to be brought back in.” The court concluded the length of time the parties spent in the shed was “not . . . sufficiently important.” Referring to Evidence Code section 352, the court noted, “[w]e’re not going to have the description of the knife if she . . . happened to say something that was a little different.” Defense counsel objected to the ruling on constitutional grounds and argued the “prior inconsistent statement” was relevant.
C. No Error in Excluding Daniel’s Statement to Victoria
Denisoff contends Daniel’s statement to Victoria was admissible as a prior inconsistent statement under Evidence Code section 1235. “ ‘A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.’ [Citation.] ‘The “fundamental requirement” of section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony.’ ” (People v. Cowan (2010) 50 Cal.4th 401, 462, fn. omitted (Cowan).) We review the trial court’s evidentiary ruling for abuse of discretion and may uphold the ruling on any ground supported by the record. (Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173.)
Denisoff acknowledges Daniel’s statement to Victoria does not “expressly contradict” his trial testimony. Nevertheless, she argues the statement “implicitly contradicted the entirety of his testimony as to everything that happened involving [her] on the day she stabbed him.” The Attorney General disagrees. We need not determine whether Daniel’s statement to Victoria was inconsistent with his trial testimony because we conclude the court properly excluded the statement under Evidence Code section 352. (See People v. Thompson (2010) 49 Cal.4th 79, 132.) “[T]he trial court has discretion to exclude impeachment evidence, including a prior inconsistent statement, if it is collateral, cumulative, confusing, or misleading.” (People v. Price (1991) 1 Cal.4th 324, 412.)
According to defense counsel, Daniel told Victoria he was “in the shed, heard noises by the ivy, open[ed] the door to his shed, saw Ms. Denisoff right outside of his shed. [¶] And [Denisoff] said . . . ‘I’ve had it,’ and then stabbed him.” At trial, Daniel admitted telling Victoria he heard a noise in the ivy outside the shed before seeing Denisoff. He also testified he told his mother that Denisoff said, “ ‘I’ve had it,’ ” and that Denisoff stabbed him. Given this testimony, Daniel’s statement to Victoria had slight probative value. The length of time the parties spent in the shed before the stabbing was a collateral issue that did not “hav[e] any tendency . . . to prove or disprove any disputed fact . . . of consequence to the determination of the action.” (Evid. Code, § 210.) We reject Denisoff’s suggestion that the jury would have formed a significantly different impression of Daniel’s credibility had the statement to Victoria had been admitted. Evidence Code section 352 “empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 296.)
That Daniel purportedly told Victoria the knife was a “double knife,” rather than a “folding knife,” was also minimally relevant. A hyper technical difference—if any—in the knife description was also “a topic collateral to the central issues in the trial.” (People v. Patrick (1981) 126 Cal.App.3d 952, 964 [no error in excluding prior inconsistent statement].) Daniel testified Denisoff stabbed him with a “folding knife,” and Denisoff admitted carrying a “folding knife.” The issue at trial was not the style of knife Denisoff used to stab Daniel, but whether she acted accidentally or stabbed Daniel in self-defense.
The minimal probative value of this collateral evidence was outweighed by the likelihood that calling Victoria in the defense case would “necessitate undue consumption of time.” (Evid. Code, § 352, subd. (a).) If Victoria denied describing Daniel’s statement to the defense investigator, or if she testified inconsistently with her statement to the defense investigator, defense counsel would “need [the] investigator to come in to testify as to what [Victoria] told [the] investigator.” Under the circumstances, the court was well within its discretion to exclude Daniel’s statement to Victoria under Evidence Code section 352. (People v. Thompson, supra, 49 Cal.4th at p. 132.)
Because we conclude the court did not err by excluding the evidence under Evidence Code 352, we reject Denisoff’s “additional claim that the trial court’s ruling deprived [her] of [her] federal constitutional right to present a defense.” (People v. Jones (2013) 57 Cal.4th 899, 957.) “[T]he routine application of provisions of the state Evidence Code law does not implicate a criminal defendant’s constitutional rights.” (Ibid.) Denisoff’s confrontation claim fares no better. “[T]he federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer.” (People v. Carter (2005) 36 Cal.4th 1114, 1172.) Here, Daniel testified at trial “and was subjected to lengthy cross-examination” by defense counsel. (People v. Perez (2000) 82 Cal.App.4th 760, 766.) “There being no prejudicial error under state law,” any error in the exclusion of the purported prior inconsistent statement “did not render [Denisoff’s] trial so fundamentally unfair so as to violate [her] right to due process” under the federal Constitution. (People v. Seumanu (2015) 61 Cal.4th 1293, 1317.) Denisoff’s reliance on Rosario v. Kuhlman (2d Cir. 1988) 839 F.2d 918 is unavailing. In that case, the district court excluded the testimony of the sole defense witness, depriving the defendant of his constitutional right to a fair trial. (Id. at pp. 926–927.) Here, Denisoff and other witnesses testified for the defense.
II.
Count 2 Must Be Vacated Because It Is a Necessarily
Included Offense of Count 3
Denisoff argues the jury improperly convicted her of Count 2, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) and of Count 3, assault with a deadly weapon (§ 245, subd. (a)(1)) because a 2012 amendment to section 245 demonstrates “the Legislature did not intend to permit convictions under both subdivisions . . . for a single assault involving one victim.” This argument is foreclosed by Jonathan R., supra, 3 Cal.App.5th 963, where our colleagues in Division One held a defendant may “be separately convicted of both an assault with a deadly weapon under section 245, subdivision (a)(1), and assault with a deadly weapon by means likely to produce great bodily injury under section 245, subdivision (a)(4)” notwithstanding the 2012 legislative amendment. (In re C.D. (2017) 18 Cal.App.5th 1021, 1027, fn. omitted, citing Jonathan R., at pp. 967–971.)
Jonathan R. does support Denisoff’s claim that “conviction on only one of those counts is permissible.” As discussed above, Jonathan R. held section 245, subdivisions (a)(1) and (a)(4) specify separate offenses. As the Attorney General acknowledges, however, that case also held assault by means of force likely to produce great bodily injury is a necessarily included offense of assault with a deadly weapon “on the basis of a single act.” (Jonathan R., supra, 3 Cal.App.5th at pp. 966, 972, 975.)
There, “the minor a stabbed another young man in the abdomen during a brawl, using a folding pocketknife.” (Jonathan R., supra, 3 Cal.App.5th at p. 967.) The wardship petition alleged the minor committed assault with a deadly weapon (§ 245, subd. (a)(1)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). (Ibid.) The juvenile court found both counts true. (Ibid.) Jonathan R. vacated the true finding on assault by means of force likely to produce great bodily injury, concluding it was necessarily included in the offense of assault with a deadly weapon. (Id. at pp. 966, 971–972.) As the court explained, “[a]ssault with a deadly weapon other than a firearm includes the elements of assault by force likely to produce great bodily injury, such that a person cannot commit the former without at the same time committing the latter, a person cannot be convicted of both offenses on the basis of a single act, notwithstanding their inclusion in separate, self-contained subdivisions of section 245.” (Id. at p. 972.) The court reasoned that an object, other than a firearm, becomes a deadly weapon within the meaning of section 245, subdivision (a)(1), only if it is used in a manner likely to produce death or great bodily injury. (Id. at p. 973.)
“[T]he commission of assault with a deadly weapon under . . . section 245, subdivision (a)(1) encompasses the commission of assault ‘by any means of force likely to produce great bodily injury’ ” under section 245, subdivision (a)(4). (In re Jose S. (2017) 12 Cal.App.5th 1107, 1122.) As a result, a “defendant who has been convicted of a violation of [section 245] subdivision (a)(1) therefore cannot also suffer a conviction under [section 245] subdivision (a)(4) based on the same assault.” (Jonathan R., supra, 3 Cal.App.5th. at p. 974.) Here, Denisoff was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) “on the basis of a single act”—stabbing Daniel. (Id. at p. 972.) As in Jonathan R., Denisoff’s conviction for assault by means of force likely to produce great bodily injury is necessarily included within her conviction for assault with a deadly weapon. (Id. at p. 975.) As a result, Count 2, the conviction for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) must be vacated.
The Attorney General’s arguments to the contrary are not persuasive. First, the Attorney General contends the convictions are permissible under People v. Aguilar (1997) 16 Cal.4th 1023, an argument the Jonathan R. court rejected. (See Jonathan R., supra, 3 Cal.App.5th at p. 974.) The Attorney General also argues “assault by force likely to produce great bodily injury is not a lesser included offense of assault with a weapon that is deadly per se.” But here, “ ‘a knife’ . . . ‘is not an inherently dangerous or deadly instrument as a matter of law.’ ” (People v. Aledamat (2018) 20 Cal.App.5th 1149, 1153.) Under Jonathan R.—and the circumstances present here—we conclude Denisoff’s conviction for assault by means of force likely to produce great bodily injury is necessarily included within her conviction for assault with a deadly weapon. (Jonathan R., supra, 3 Cal.App.5th at p. 975.) Accordingly, Count 2, the conviction for assault by means of force likely to produce great bodily injury, must be vacated, along with the enhancements alleged in Count 2. Having reached this result, we need not consider Denisoff’s claim that the deadly weapon enhancement (§ 12022, subd. (b)(1)) in Count 2 must be stricken.
DISPOSITION
The conviction on Count 2—for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4))—is vacated. The enhancements to Count 2—for personal infliction of great bodily injury (§ 12022.7, subd. (e)) and personal use of a deadly weapon (§ 12202, subd. (b)(1))—are also vacated. The case is remanded for resentencing in accordance with the views expressed herein.





_________________________
Jones, P. J.


We concur:


_________________________
Simons, J.


_________________________
Needham, J.