P. v. Hefner
Filed 8/3/06 P. v. Hefner CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. BRENDA DARLENE HEFNER, Defendant and Appellant. |
F048370
(Super. Ct. No. CRF16945)
O P I N I O N |
APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.
John Hargreaves, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Brenda Darlene Hefner was convicted of kidnapping her daughter and assaulting her daughter's boyfriend with a firearm. On appeal, appellant contends (1) the trial court erred by failing to instruct on false imprisonment as a lesser included offense of kidnapping; (2) the 10-year firearm enhancement constitutes cruel and unusual punishment as applied to her; and (3) the trial court erred by staying rather than striking a second firearm enhancement. We will strike the previously stayed firearm enhancement and affirm the judgment in all other respects.
PROCEDURAL SUMMARY
On March 18, 2005, the district attorney charged appellant with first degree burglary (Pen. Code, § 459; count 1);[1] kidnapping (§ 207, subd. (a); count 2); assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4); and false imprisonment by violence (§ 236; count 5). The information further alleged that appellant personally used a firearm in the commission of the offenses (§ 12022.5, subd. (a) [all counts]; § 12022.53, subd. (b) [count 2]).
The jury found appellant guilty on counts 2 and 3 and not guilty on counts 4 and 5. The jury found true the section 12022.5, subdivision (a) allegations as to counts 2 and 3 and the section 12022.53, subdivision (b) allegation as to count 2. The jury deadlocked on count 1 and the court declared a mistrial as to that count.
The trial court sentenced appellant to a total of 13 years, which included three years on count 2, plus 10 years for the section 12022.53, subdivision (b) enhancement to be served consecutively. The court stayed the sentence on the section 12022.5, subdivision (a) enhancement. On count 3, the court sentenced appellant to two years to be served concurrently to the term on count 2.
FACTS
Eighteen-year-old Amy lived with her boyfriend, Gregory. They had rented a room in the Owsleys' house for about one and one-half months. Michael, James and their father, Terry Owsley, also lived in the house. Terry usually bought groceries for the household every week and cooked dinner for everyone at night.
On March 3, 2005, at about midnight, Michael was on the couch watching television. Amy and Gregory were in their room. James was in his room watching television. Michael thought he heard someone yelling outside. He looked outside and saw someone walk through the gate at the sidewalk. The front door, which Michael believed was locked, flew wide open and appellant, Amy's mother, walked in. She was wearing an overcoat. She seemed upset and she asked Michael where Amy's room was. Michael heard Gregory yell to Amy that her mother was there. He had been alerted to her presence because he had a monitor for the front door surveillance camera. Appellant walked over to Amy and Gregory's room, turned the knob and pushed the door open. Michael could see a rifle barrel sticking out of the bottom of appellant's coat. As appellant was entering the bedroom, appellant moved the rifle out of her coat. When he saw this, Michael got up and went to his room to find some sort of weapon he could hit appellant with.
Meanwhile, James had also heard appellant yelling in the front yard. He heard the gate swing open and the front door being kicked open. He heard appellant yell, â€
