Opinion
F073541
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. VINCENT CHAVEZ, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR048284A)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, William K. Kim, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Vincent Chavez appeals his conviction for attempted dissuasion of a witness by threat of force. He contends this conviction must be reversed because the trial court prejudicially erred in failing to instruct the jury on the entrapment defense, in relation to the attempted dissuasion charge. We reject this contention because the record discloses no basis for giving an entrapment instruction in relation to the attempted dissuasion charge. Chavez next argues the trial court improperly calculated his presentence conduct credit and requests remand for correction of the error. We agree the trial court erred in its calculation of Chavez's presentence conduct credit and will remand for the trial court to recalculate the credit. In all other respects, we affirm the judgment.
PROCEDURAL HISTORY
Chavez and a co-defendant, Andrew Chavez, were charged with multiple criminal counts in a second amended information (information) filed in the Madera County Superior Court. Chavez was charged with two counts of robbery (counts 1, 2; Pen. Code, § 211); possession of a firearm by a felon (count 3; § 29800, subd. (a)(1)); active participation in a criminal street gang, i.e., the substantive gang offense (count 4; § 186.22, subd. (a)); and attempting to dissuade a witness, Alicia G., by threat of force (count 5; § 136.1, subd. (c)(1)). The information also alleged a number of sentence enhancements as to both defendants. As to Chavez, the information alleged, in connection with the robbery counts, enhancements for "acting in concert with two or more other persons" (§ 213), gun enhancements (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), as well as gang enhancements (§186.22, subd. (b)(4)). The information further alleged, as to Chavez, gang enhancements in connection with the charges of felon in possession of a firearm and attempting to dissuade a witness by threat of force. (§ 186.22, subd. (b)(4).) Finally, the information alleged, as to Chavez, a prior prison term enhancement as to the counts of robbery, felon in possession of a firearm, and active participation in a criminal street gang (substantive gang offense). (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code.
After a jury trial, Chavez was acquitted of both counts of robbery, being a felon in possession of a firearm, and the substantive gang offense. The jury convicted Chavez only of attempting to dissuade a witness, Alicia G., by threat of force but hung on the gang enhancement attached to that count.
Codefendant Andrew Chavez—who was charged along with Chavez, with the two counts of robbery and the count of active participation in a criminal street gang—was acquitted of all charges against him.
FACTS
Alicia G. testified for the prosecution. She testified that on December 29, 2013, three men entered her Madera home. One of the men held Alicia and her brother-in-law at gunpoint; another man collected various items from the house; and the third man checked to see who else was in the house. The men then fled.
In February 2014, Chavez was arrested in connection with the incident. The People's gang expert, Officer Richard Gonzalez, opined at trial that Chavez was a member of the Adelaide Street Gang, a subset of the larger Norteño gang. Officer Gonzalez testified that Chavez used the moniker, "Sumi." Officer Gonzalez had never had any personal contact with Chavez.
Chavez was held at the Madera County Jail after his arrest for the robbery at the Alicia's home. For about a month of his time in custody there, he was housed in cell L31. His cellmate in cell L31 was Gustavo Navarro. Navarro was a member of the Varrio Tiny Winos gang, another subset of the larger Norteño gang.
Navarro was processed for release from jail at approximately 12 a.m. on July 18, 2014. Corporal Ben Mendoza of the Madera County Jail searched Navarro and his belongings ahead of his release to ensure he was not smuggling any contraband out of the jail. Navarro appeared reluctant to submit to the search. Mendoza found, during the search, several drawings containing gang graffiti and a handwritten letter signed "Sumi." Navarro was released on schedule but Mendoza confiscated the gang drawings and the letter.
The letter confiscated from Navarro was introduced into evidence and read aloud to the jury. It was written in cursive script at the top, and in block print at the bottom. The letter instructed:
"First plan, get to Skittles, then get a hold of Nightmare. Then with those two, get ahold of Jaimes or Jamies. Not by phone, but by person. When face-to-face, act cool and calm and then explain to him how sorry you are for the mix-up that took place. Basically get on his good side."
"So then explain to him that I'm about to have a kid and offer him five grand cash. If he does want to take the money, then I start to gather it. Also, if all goes right with this first plan, tell him how it will play out. They either don't show up for court, or if they are forced by the cops to go to court, just change it all up on them. Say it ain't me, and they made a mistake. But I'd rather they not show up.
"And if for some reason this does go through, record him getting the money. I doubt this first plan will work, but try it anyway.
"Real talk.
"Second plan, I start trial the end of August. So if my time don't drop down to six by the beginning of August, I put all faith into my homies that are from the block I'd die for to find this dumb lying bitch and crack her head wide open with a bat or crowbar. No gun.
"If all goes bad and I do get fucked over, all bad. Out of these two plans, one will work, so try both....
"These are the only ideas I have. If you have something better in mind, shoot for it. Look out for me. Real talk. Sumi."
The same night that this letter was found on Navarro, Mendoza and other jail officers searched cell L31 as well as adjoining cell L29. During the search, officers located additional drawings with gang graffiti; a letter addressed to Sumi; and an improvised razor blade weapon. (Chavez testified at trial that "Sumi" was a nickname given to him by his grandmother; and that it was not a gang moniker.)
Madera Police Detective Shant Sheklanian conducted an investigation regarding the drawings and letters. Detective Sheklanian believed Alicia G. was the target mentioned in the letter, given the ongoing police investigation into the robbery at her house and the fact that her husband's name is James. Sheklanian sent the letter for fingerprint analysis. The fingerprint analysis matched a number of prints on the letter to Chavez. Navarro's prints were not found on the letter.
Sheklanian subsequently interrogated Navarro regarding the letter but Navarro was not charged or arrested in connection with the letter. Sheklanian also interrogated Chavez. Chavez denied writing the letter; he said someone had forged the name "Sumi" at the end of the letter.
Chavez testified on his own behalf at trial. Unlike his statement to Sheklanian, at trial Chavez acknowledged that he did write the letter. He maintained, however, that he did not sign the letter "Sumi," nor did he know who did. Chavez further testified that he knew Alicia G. and her husband James G. through a family member and was aware that James cultivated marijuana. "Nightmare," who is mentioned in the letter, was in a marijuana cultivation business with James. Chavez denied going to, and committing the robbery at, the victims' house. He was upset and angry at being falsely accused in the instant case. He discussed the false accusations against him with his jail cellmate, Navarro. Navarro talked to him about the letter and its contents and told Chavez he would take the letter out of jail for him.
Defense counsel specifically asked Chavez, "[W]hy did this letter get written?" Chavez responded: "Stress. Stressing. Stressing over what I'm being alleged of doing. It was, like basically someone—[Navarro], I guess you would say—helping me out, telling me that there was—I guess ... basically hearing about stuff about these people and stuff like that. Like, oh, well, you know people that know [Alicia and James G.]. Well, write this letter, and I'll take it [for] you, pretty much [this] type of stuff."
DISCUSSION
I. Entrapment Instruction
Chavez argues the trial court prejudicially erred in denying his request for an instruction on entrapment. He contends the court was required to instruct on entrapment in light of the fact that Navarro encouraged him to write the letter on which his conviction for attempting to dissuade a witness is based. We reject this contention because there was no substantial evidence that Chavez was entrapped by Navarro.
Entrapment is an affirmative defense that the defense must prove by a preponderance of the evidence. (People v. Fiu (2008) 165 Cal.App.4th 360, 383 (Fiu).) The test for entrapment is objective and focuses on police conduct. (People v. Watson (2000) 22 Cal.4th 220, 223; see Fiu, supra, at p. 383 [entrapment defense "was developed to control illegal police conduct"].) Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense (People v. Barraza (1979) 23 Cal.3d 675, 690-691 (Barazza).) "[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect—for example, a decoy program—is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." (Id. at p. 690.) A trial court must instruct on entrapment only where there is substantial evidence to support the defense under the preponderance of the evidence standard of proof. (Watson, supra, at pp. 222-223; see CALCRIM No. 3408.) On appeal, we review a claim of instructional error de novo. (People v. Licas (2007) 41 Cal.4th 362, 366.)
Here, we agree with the People that the record discloses no substantial evidence to show that Navarro was an agent of law enforcement. There was no direct evidence of a connection between law enforcement and Navarro. Nor did the circumstantial evidence support a conclusion that Navarro was a confidential informant acting at the behest of law enforcement. Corporal Mendoza testified that although the Madera County Department of Corrections had used confidential informants at times, he was not aware that Navarro was a confidential informant. Mendoza further explained that Navarro initially refused to turn over his belongings for the search Mendoza was tasked with conducting ahead of Navarro's release. Mendoza had to grab the belongings so Navarro could go into a holding cell to change out of jail clothing. Officer Richard Gonzalez of the Madera Police Department testified it was rare for law enforcement to place inmates together even to obtain information, let alone for purposes of getting one into trouble. Officer Gonzalez further testified that, to his knowledge, Navarro was not a confidential informant. Finally, Detective Josh Chavez of the Madera Police Department testified that the Department's detectives did not use confidential informants.
Chavez argues that the jury could properly have inferred that Navarro was an agent of law enforcement based on his placement in the same cell as Chavez "less than a month before the scheduled start of his trial," and the fact that "[e]ven though Navarro was a known gang member and possessed the drawings and a letter threatening a potential witness, Navarro was released from jail." The fact that Chavez and Navarro happened to be cellmates and/or the fact that Navarro was released on schedule after authorities confiscated the gang-related drawings and the threatening letter signed "Sumi" from him, does not constitute substantial evidence that Navarro was an agent of law enforcement or a confidential informant. Furthermore, while there was evidence that Chavez and Navarro discussed writing the letter, the evidence did not show that Navarro badgered, cajoled, or importuned Chavez into doing so. (See Barraza, supra, 23 Cal.3d at p. 690.) In short, there was no substantial evidence to warrant an instruction on entrapment.
For its part, the trial court denied the defense's request for an entrapment instruction on grounds there was no substantial evidence to support the instruction. The court expressly noted, "I find that there is not substantial evidence that Mr. Navarro was ... acting as an agent of the Government at the time that the exchange between he and Vincent Chavez occurred." We will affirm. II. Time Credits Applicable to Sentence for Attempting to Dissuade a Witness
The court explained its reasoning:
"As to the entrapment instruction, the argument is that Mr. Navarro acted in the capacity as an agent for the government. I see no evidence to support that. Even if Mr. Navarro convinced [Chavez] to write the letter ... [t]here was no entrapment unless [Navarro] was ... an agent of the law enforcement. As I indicated, there's no substantial evidence of this, in fact, the evidence is to the contrary. And I'll point out a few items of evidence that I think to the contrary of that conclusion. First of all, Navarro didn't immediately report to law enforcement that he successfully induced [Chavez] to write the letter. It seems to me that if Navarro was an agent of law enforcement, he would have gone with the letter to his law enforcement [handler] and said, 'Here, it is.' He didn't voluntarily present the letter to law enforcement during the release procedure. Corporal Mendoza indicated that when he asked to see the papers that Navarro was taking out of the jail, Navarro didn't want to give them up. Mendoza indicated that he had to pull the documents from Navarro's grasp. There's no evidence that Navarro was acting on behalf of the [Department of Corrections] or Madera Police Department. Mendoza testified that he didn't know if Navarro was a confidential informant or not. Detective Chavez testified that it's not his practice to use confidential informants. He also testified that Madera [Police Department] detectives do not use confidential informants. There's no indication that Navarro was acting ... as a confidential informant for the Department of Corrections, Madera [Police Department], or any law enforcement agency."
Chavez was acquitted by the jury of the robbery charges, as well as the charges of felon in possession of a firearm and the substantive gang offense. He was convicted by the jury of attempting to dissuade a witness by threat of force. The jury, however, was unable to reach a verdict on the section 186.22, subdivision (b)(4) gang enhancement attached to that count.
Subsequently, Chavez pleaded guilty to one count of conspiracy to intimidate a witness (§ 182, subd. (a)(1)) and one count of the substantive gang offense (§ 186.22, subd. (a)). In exchange for the plea, the prosecution dismissed the gang enhancement attached to the charge of attempted dissuasion of a witness, i.e., the gang enhancement that the jury was unable to find true.
At Chavez's sentencing, the court imposed presentence conduct credits under section 2933.1, subdivision (c). Under section 2933.1, subdivision (c), a defendant who is convicted of any violent felony listed in section 667.5, subdivision (c), may accrue presentence custody credit of no more than 15 percent of actual days in custody. However, if a defendant's current convictions are not "violent" within the meaning of section 667.5, subdivision (c), he is entitled to standard presentence credit under section 4019, subdivision (f). (See § 4019, subd. (f); People v. Thomas (1999) 21 Cal.4th 1122, 1130; People v. Dieck (2009) 46 Cal.4th 934, 939.)
A conviction for witness dissuasion pursuant to section 136.1, constitutes a violent felony under section 667.5, subdivision (c), only if it constitutes a violation of section 186.22. (See § 667.5, subd. (c)(20) [designating as a violent felony, "[t]hreats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22"].) The trial court deemed Chavez's conviction for attempted dissuasion of a witness pursuant to section 136.1 to be a violent felony under section 667.5, subdivision (c)(20) and, in turn, calculated Chavez's presentence custody credits under section 2933.1, subdivision (c).
Chavez challenges the court's calculation of presentence custody credits on grounds that his section 136.1 conviction is not a violent felony within the meaning of section 667.5, subdivision (c)(20). We agree on this point. Here, the jury did not find true the section 186.22, subdivision (b) gang enhancement attached to Chavez's section 136.1 conviction (indeed, the gang enhancement allegation was subsequently dismissed). Chavez's section 136.1 conviction was therefore not a violent felony for purposes of section 667, subdivision (c)(20). (See People v. Briceno (2004) 34 Cal.4th 451, 463-464 (Briceno) [making threats to victims or witnesses, a violation of § 136.1, is a serious felony under § 1197.2, but "becomes a violent felony" for purposes of § 667.5, subd. (c)(20), "when it is committed for the benefit of a criminal street gang under the [§ 186.22, subd. (b)] gang enhancement"].) Consequently, the court was required to calculate presentence custody credits pursuant to section 4019, subdivision (f) rather than section 2933.1, subdivision (c).
The People argue that the trial court properly applied section 2933.1, subdivision (c), in calculating Chavez's presentence custody credits in light of Chavez's pleas to the charges of conspiracy under section 182, subdivision (a)(1) and the substantive gang offense under section 186.22, subdivision (a). However, section 2933.1, subdivision (c) applies only to violent felonies, and neither conspiracy nor the substantive gang offense are violent felonies under section 667.5, subdivision (c).
Nor does Chavez's conviction for the substantive gang offense render his separate conviction for attempted dissuasion of a witness under section 136.1, a violent felony under section 667, subdivision (c)(20). In this respect, section 1192.7, subdivision (c), which defines serious felonies, is broader than section 667, subdivision (c), which defines violent felonies. Section 1192.7 subdivision (c) designates as a serious felony "any felony offense, which would also constitute a felony violation of Section 186.22." (§ 1192.7, subd. (c)(28), italics added.) Thus, under section 1192.7, subdivision (c), the substantive gang offense under 186.22, subdivision (a), as well as any other felony brought into the ambit of the gang statute by application of a section 186.22, subdivision (b) enhancement, would independently count as a serious felony. In addition, section 1192.7, subdivision (c)(38) further designates any felony violation of section 136.1 as a serious felony. In contrast, section 665.7, subdivision (c) designates a narrow list of specific crimes as violent felonies, including a section 136.1 felony that is brought into the ambit of the gang statute by means of a section 186.22, subdivision (b) enhancement. (Briceno, supra, 34 Cal.4th at pp. 463-464 ["Making threats to victims or witnesses (§ 136.1), is a serious felony (§ 1192.7, subd. (c)(28)) that becomes a violent felony when it is committed for the benefit of a criminal street gang under the [section 186.22, subdivision (b)] gang enhancement. (§ 667.5, subd. (c)(20).)"].)
We note that the probation report provided to the court correctly noted that none of the offenses of conviction were violent felonies within the meaning of section 667.5, subdivision (c). Accordingly, the probation report calculated presentence conduct credit under section 4019, subdivision (f). Defense counsel also argued that since Chavez was not convicted of a violent felony, the court was statutorily required to calculate presentence conduct credit pursuant to section 4019, subdivision (f). The trial court ruled it would "go ahead" and "award credits at 15 percent," with the caveat that "if it is not a violent felony ... and it's determined later through any means that it's not a violent felony, then Mr. Chavez will earn credits pursuant to 4019." However, a trial court has an affirmative duty to accurately calculate a defendant's presentence credit by applying the applicable statutory formula. (See People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Jack (1989) 213 Cal.App.3d 913, 916-917.) If the court's "calculation of credits is legally wrong," it constitutes "an act in excess of its jurisdiction." (Jack, supra, at p. 917.) Since Chavez was not convicted of a violent felony, his presentence conduct credits must be calculated pursuant to section 4019, subdivision (f).
DISPOSITION
The trial court's determination of 89 days of presentence conduct credit is vacated. The matter is remanded for the trial court to recalculate presentence conduct credit under section 4019. In all other respects, the judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
FRANSON, J.