P. v. Jones

Filed 6/13/06 P. v. Jones CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Bennie Juanita Jones was convicted of felony child endangerment in violation of Penal Code section 273a, subdivision (a),^[1] and placed on three years' formal probation. She appeals claiming the trial court prejudicially erred in failing to instruct the jury (1) regarding accomplice testimony, (2) regarding accident or misfortune, and (3) that evidence of her drug use could not be considered to infer criminal propensity. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January and the beginning of February 2002, T. Jones and her three children, eight-year-old B., three-year-old A., and 18-month-old D. lived with defendant in a house owned by defendant's former husband. Also living in the house were three of defendant's adult sons, Willie Jr., Benjamin, and Clarence, Willie Jr.'s girlfriend Leslie Logan, Clarence's girlfriend Eartha Moore, and a friend named Ruth Lane with her three children. Benjamin's wife Doretha Koen stayed over occasionally. Ruth Lane's husband, Thomas, stayed off and on. Defendant slept on a bed or cot in the living room and dining room area.

Defendant watched her daughter T.'s three children (her grandchildren) at the house while T. worked or ran errands. Child Action paid defendant to watch the oldest two children.

On February 1, 2002, T. was in the process of moving out of the house, which was being sold. She arrived at the house in the late morning to finish packing and to clean her room. Her children played both inside the house and outside in the backyard while T. and defendant took turns watching them. Just prior to 7:00 p.m., the children wanted to eat some cereal. T. got the cereal for them and took them to the kitchen where she asked defendant to feed them, as she needed to go out. Defendant agreed. The children were happy and playing when T. left. Fifteen to twenty minutes later, D., the 18-month old, went into a seizure and 911 was called. D. was treated at the hospital pediatric emergency room, where it was determined she had cocaine in her system and was suffering from cocaine poisoning.^[2]

Sacramento City Police Officer Linda Matthew talked to T. at the hospital where D. was treated. T. told Officer Matthew defendant sometimes uses drugs, that defendant had been using since T. was 11 years old, and that defendant uses rock cocaine two to three times a week in the bathroom or her bedroom, but never in front of the children. T. thought D. might have ingested the cocaine from a spoon. T. had seen brown burn marks on the bottom of spoons from defendant using drugs.

Sacramento City Police Sergeant Richard Gautier, Officer Brian Hergenreder and Officer Mark Hefner were dispatched to defendant's home around 4:30 a.m. on February 2, 2003 to do a welfare check on T.'s other two children. When the officers were admitted, they found eight adults, including defendant, in a dirty and unkempt front room wide awake. Officer Hergenreder did a protective search of the house and identified a number of the people present. During this protective sweep Officer Hergenreder found in plain sight a narcotics pipe made out of a baby food glass jar in one of the bedrooms. As there were a number of people in the house who could have been in the bedroom, no one was charged with possession of the pipe. The pipe was taken for safety and booked into evidence. T.'s two older children were found and taken into protective custody.

Sacramento Police Detectives Alisa Buckley and Tiffany Keller were assigned to investigate this incident. They went out to the house on February 4, 2003 around 1:00 p.m. They knocked on the door and announced their presence. They heard a lot of movement and shuffling inside the house, but no one came to the door. After twenty to thirty seconds, Detective Buckley yelled they were investigating a child abuse case, that was the reason they were there, and â€