Opinion
C091908
08-16-2021
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY CHIEMWICHITRA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 19F4451
DUARTE, J.
This is a domestic violence case involving a repeat offender. A jury found defendant Timothy Chiemwichitra guilty of numerous offenses arising out of a violent altercation with his girlfriend, including willful infliction of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)); assault with a deadly weapon (§ 245, subd. (a)(1)); driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)); witness intimidation (§ 136.1, subd. (a)(1)); willfully resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)); leaving the scene of an accident resulting in damage to property (i.e., hit-and-run) (Veh. Code, § 20002, subd. (a)); and two counts of contempt of court for disobeying a no-contact protective order (§ 166, subd. (a)(4)). The jury also found that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and, in a bifurcated proceeding, the trial court found that he had a prior domestic violence conviction within the meaning of section 273.5, subdivision (f). The trial court sentenced him to an aggregate term of 12 years eight months in prison. This timely appeal followed.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends reversal is required due to evidentiary error, insufficiency of the evidence, and instructional error. We will reverse defendant's conviction for witness intimidation (count 4); as we explain, retrial is precluded due to the insufficiency of the evidence presented supporting that count as charged. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
Defendant and the victim (L.A.) began dating in 2017 or 2018. In May 2019, L.A. was living with her mother. She was 20 years old and defendant was 32. L.A. and defendant already had one child together and she was again pregnant with his child. On the morning of May 31, 2019, defendant entered L.A.'s home without permission and argued with her. During that argument, he threw a champagne bottle at her “super hard” while she was sitting on a couch, causing severe injuries to her genital area. L.A.'s mother took her to the hospital in defendant's car. He did not go with them.
At the hospital, L.A. was crying, shaking, and in significant pain. She screamed when the treating physician attempted to examine her genital area, which was bleeding profusely. She had multiple deep lacerations, bruising, and “extensive disruption of the anatomy around her urethra.” The physician could not identify L.A.'s urethra and had difficulty seeing normal anatomy because the “area from about the clitoris all the way down to the vagina was splayed open in multiple lacerations.” L.A.'s urethra was surgically reconstructed and more than 100 stiches were required to treat the injuries. The physician opined that L.A. would have bled to death absent medical intervention.
On July 20, 2019, L.A.'s mother called the police to report that defendant was at her residence. The responding officer, who was familiar with defendant from a prior domestic violence incident involving L.A., observed defendant driving in the area near L.A.'s residence. When the officer turned his patrol vehicle around to initiate a traffic stop, defendant fled at a high rate of speed. The officer gave chase and activated his overhead lights and siren but defendant did not stop. He sped through a residential area, driving 65 miles per hour in a 25-mile-per-hour zone, and failed to stop at two stop signs. The car chase ended shortly thereafter when defendant failed to negotiate a turn and crashed into a retaining wall outside a residence. He immediately fled on foot. He was apprehended around 10 minutes later with the assistance of a K-9 and additional officers.
On July 24, 2019, a protective order was issued, prohibiting defendant from having any contact with L.A. Thereafter, defendant repeatedly contacted L.A. from jail in violation of this order via phone calls, text messages, and video conferences. He placed over 3, 400 jail phone calls to L.A. after the protective order was issued. He also used another inmate's account to send text messages to L.A. and to participate in video conferences with her.
At the close of trial, the parties stipulated that defendant had three prior domestic violence convictions. (§§ 273. 5, subd. (a), 243, subd. (e)(1).)
DISCUSSION
I
Alleged Evidentiary Error
Defendant contends the trial court prejudicially erred in permitting Tim Wiley, an investigator from the Shasta County District Attorney's Office, to testify as an expert on certain aspects of intimate partner battering. According to defendant, Wiley was not qualified to testify as an expert on this subject. We see no error.
A. Additional Background
The prosecution filed a pretrial motion seeking permission to introduce expert testimony from Wiley on intimate partner battering; specifically, testimony on the cycle of violence and witness dissuasion in domestic violence cases. The defense filed its own pretrial motion requesting an order prohibiting Wiley from testifying as an expert on these subjects, arguing that he was not qualified to do so.
At the pretrial hearing on the motions, defense counsel stated that her primary objection to Wiley's proposed testimony was that it appeared he intended on improperly rendering an opinion on whether defendant engaged in witness intimidation. In deferring its ruling, the trial court agreed that it would be improper for an expert to opine on the issue of defendant's guilt, but noted that it is common for domestic violence experts to testify about the behavior of domestic abuse victims, including why victims do not leave their abusers and why they recant their accusations of abuse.
In a break in the proceedings on the first day of trial, defense counsel asked the trial court to address the admissibility of Wiley's proposed expert testimony. As part of that discussion, counsel noted that she was concerned about the nature of Wiley's expertise as a local law enforcement officer, explaining that: “Whether somebody is a person who can opine about battered women's syndrome is more of a clinician social worker type of expertise.”
“Although often referred to as ‘battered women's syndrome,' ‘intimate partner battering and its effects' is the more accurate and now preferred term.” (In re Walker (2007) 147 Cal.App.4th 533, 536, fn. 1.) We use the preferred term in this opinion, although battered women's syndrome was used in the trial court.
In response, the trial court explained the procedure it follows when a party seeks to qualify a witness as an expert, including allowing the opposing party to question the witness on their expert qualifications. In doing so, the court acknowledged that defense counsel believed Wiley had insufficient training to qualify as an expert on intimate partner battering, but noted that Wiley had previously testified as an expert on this subject and that the court anticipated he would again be deemed qualified to render opinions on the subject, although the court noted its ruling would be based on the evidence presented in this case. The court advised counsel that, even if Wiley were deemed qualified to testify as an expert on intimate partner battering, she could argue to the jury that he was not qualified to render opinions on that subject, as the jury instruction on expert testimony contemplated. (See CALCRIM No. 332.)
In relevant part, CALCRIM No. 332 states: “A witness was... allowed to testify as [an] expert[] and to give... opinion[s]. You must consider the opinion[s], but you are not required to accept... them... as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. [¶] You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” At the close of trial, the jury was instructed pursuant to this pattern instruction orally and in writing.
At trial, L.A.'s treating physician testified that L.A. initially reported her injuries were the result of a fall. However, following surgery, L.A. said that her boyfriend threw a heavy glass bottle at her during an altercation; she later confirmed that same story to her doctor multiple times over her period of treatment. When L.A. was interviewed by a police officer at the hospital, a recording of which was played for the jury, she confirmed that defendant had thrown a heavy bottle at her during an argument. L.A.'s mother gave the officer a statement that was consistent with this version of events.
At the outset of L.A.'s testimony, she admitted that she did not want to testify. Under questioning, L.A. acknowledged that she and defendant argued on the morning of May 31, 2019, but she refused to identify him as the person who threw the bottle at her. She claimed that she did not know who threw the bottle and did not remember if she told the police who did, although she noted that neither her mother nor her brother, the only others in the house at the time, threw the bottle. She said defendant left before she was injured.
Upon further questioning, L.A. admitted that she told a police officer and medical personnel that defendant had thrown a bottle at her. However, she explained that she had lied because she was angry at defendant for a variety of reasons, including his infidelity. She also explained that she still loved him. When asked, she testified about a prior domestic violence incident involving defendant in January 2019. She explained that he hit her in the head during an altercation that occurred while they were dropping their daughter off at school. She noted that she was very angry at him after this incident but they remained in a relationship.
Following L.A.'s testimony, the trial court permitted both counsel to question Wiley on his expert qualifications and then determined that Wiley was qualified to testify as an expert on certain aspects of intimate partner battering; specifically the investigation of domestic violence incidents and the common behaviors displayed by victims of domestic violence.
In response to the prosecutor's questions, Wiley explained that he had been a peace officer since 2002 and estimated that he had responded to approximately 5000 to 6000 incidents of domestic violence. His formal training included 40 hours of intensive training on domestic violence investigations and several updated courses on domestic violence, including courses on the first responder's response to domestic violence and non-lethal strangulation in the context of domestic violence. He had studied several publications on the subject of domestic violence, including the Duluth model for domestic violence, which involved research on domestic abuse victims wherein the victims identified common characteristics of their abuser's behavior which were used to maintain power and control over them. After Wiley indicated that he had personally observed the power and control dynamics of domestic violence in the field, he explained that the cycle of violence in domestic abuse cases is “a little bit different” than the power and control elements in that the cycle of violence involves certain patterns of behavior that occur within an abusive relationship as it relates to how the violence starts and continuously reoccurs, emphasizing that “[i]n the center of it is the fact that the victim often denies [the abuse is] happening.”
At that point, defense counsel objected, arguing that an adequate foundation had not been established for Wiley to testify as an expert. The trial court overruled the objection and invited defense counsel to question Wiley as to his expert qualifications. In response to counsel's questions, Wiley stated that he had specific training on intimate partner battering, including training on investigating domestic violence incidents, and how non-lethal strangulation relates to the power and control dynamics of domestic abuse and the cycle of violence in abusive relationships. Wiley explained that the course on investigating domestic violence incidents focused on, among other things, why domestic abuse occurs and how it continues to occur. Wiley also stated that he wrote a research paper on intimate partner battering in 2004, and that he had reviewed research articles on domestic violence thereafter, which he found “directly related” to his observations in the field. Wiley acknowledged that he was not familiar with recent publications on the power and control elements of domestic violence.
After the trial court deemed Wiley qualified to testify as an expert on certain aspects of intimate partner battering, he testified about the cycle of violence and the dynamics of power and control in abusive relationships. In doing so, he explained the components of the cycle of violence and identified typical behaviors displayed by domestic abusers, including physical and sexual violence; threatening, coercing, intimidating, controlling, and isolating the victim; emotionally abusing and putting the victim down; blaming the victim for the abuse; denying or minimizing the abuse; and using children and/or financial support as leverage to convince the victim to lie for them about the abuse.
Wiley testified that L.A. failed to arrive for her scheduled interview at the district attorney's office in August 2019. He also testified about how certain jail communications (calls, texts, and a video conference) between defendant and L.A. were consistent with the typical patterns of behavior that occur in abusive relationships, including defendant's attempt to persuade L.A. to recant her accusation of abuse. Several recorded jail phone calls and one video conference were played for the jury.
B. Analysis
Evidence Code section 801, subdivision (a) permits expert testimony on subjects “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” Evidence Code section 1107 provides: “In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge. [¶] The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven.” (Evid. Code, § 1107, subds. (a), (b).)
Expert testimony about the effects of intimate partner battering “speaks directly to both recantation and reunion by a domestic abuse victim....” (People v. Gadlin (2000) 78 Cal.App.4th 587, 594.) “When the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume that the victim is an untruthful or unreliable witness. [Citations.] And when the victim's trial testimony supports the defendant or minimizes the violence of his actions, the jurors may assume that if there really had been abusive behavior, the victim would not be testifying in the defendant's favor.” (People v. Brown (2004) 33 Cal.4th 892, 906.) Expert testimony on intimate partner battering is generally relevant and admissible “to explain that it is common for people who have been physically and mentally abused to act in ways that may be difficult for a layperson to understand.” (People v. Riggs (2008) 44 Cal.4th 248, 293; see People v. Kovacich (2011) 201 Cal.App.4th 863, 903 [“expert testimony on domestic violence may include general descriptions of abuser behavior in order to ‘explain the victim's actions in light of the abusive conduct' ”].) In this case, defendant does not dispute the relevancy of expert testimony on intimate partner battering and its effects. Instead, he challenges only the trial court's determination that Wiley was qualified to testify as an expert on this subject.
Witnesses may testify as experts if they have “special knowledge, skill, experience, training, or education sufficient to qualify” them, as demonstrated through “any otherwise admissible evidence” including their own testimony. (Evid. Code, § 720, subds. (a), (b).) A trial court is given “considerable latitude” in determining an expert's qualifications and its ruling will not be disturbed on appeal unless the record demonstrates a manifest abuse of discretion. (People v. Bloyd (1987) 43 Cal.3d 333, 357.) “ ‘Such abuse of discretion will be found only where “ ‘the evidence shows that a witness clearly lacks qualification as an expert....' ”' ” (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
We conclude the trial court did not abuse its discretion in finding that Wiley was qualified to testify as an expert on certain aspects of intimate partner battering and its effects. In view of Wiley's training on the subject and practical experience as a peace officer, his review of relevant literature, and his qualification as an expert on intimate partner battering in at least one prior case, we cannot say that he clearly lacked the qualifications to testify as an expert. (See People v. Williams (1997) 16 Cal.4th 153, 195 [giving previous expert testimony supports later qualification as an expert witness].)
We reject defendant's contention that Wiley's lack of a scientific background and/or degree in psychology is fatal to his qualification as an expert. It is a longstanding rule that “[a] university degree, earned by scientific pursuits, is helpful, but it is not indispensable to the qualification of an expert to testify on subjects in the field of his specialty.” (People v. Smith (1956) 142 Cal.App.2d 287, 293.) A person may qualify as an expert through experience. Complaints about the degree of an expert's knowledge is an issue of weight, rather than admissibility. (People v. Bolin (1998) 18 Cal.4th 297, 322; People v. Tuggle (2012) 203 Cal.App.4th 1071, 1079-1080 [crime lab employee who was not a criminalist was qualified to testify as expert in fingerprint identification based on practical experience and training courses].) Wiley did not claim that he had an educational background in psychology and disclosed that he had not reviewed recent research articles on the power and control dynamics of domestic violence, and the jury was entitled to accord his testimony the weight it determined it deserved.
II
Alleged Instructional Error
Defendant contends the trial court prejudicially erred in failing to instruct the jury on the correct elements of count 4, which charged him with witness intimidation in violation of section 136.1, subdivision (a). We agree.
A. Additional Background
The operative accusatory pleading charged defendant in count 4 with preventing and dissuading a witness and victim (L.A.) from testifying in violation of section 136.1, subdivision (a)(1) or attempting to do the same in violation of section 136.1, subdivision (a)(2). Section 136.1 subdivision (a) applies when a person “[k]nowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law” (§ 136.1, subd. (a)(1)) or “knowingly and maliciously” attempts to do so (id., subd. (a)(2)). (See People v. Fernandez (2003) 106 Cal.App.4th 943, 948 [§ 136.1, subd. (a) punishes a defendant's “efforts to prevent a victim or witness from appearing in court and giving testimony”].) However, the trial court did not instruct the jury on these charges. Instead, the court instructed the jury on section 136.1, subdivision (b)(2), which applies when a person attempts to prevent or dissuade any witness or victim from “[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.” This provision “encompasses more than prearrest efforts to dissuade, inasmuch as it includes attempts to dissuade a victim from causing a complaint or information to be prosecuted or assisting in that prosecution.” (People v. Velazquez (2011) 201 Cal.App.4th 219, 224, 233.)
Although the accusatory pleading did not include a reference to section 136.1 subdivision (a)(2), the allegations put defendant on notice that he was also charged with a violation of that provision. “[I]t is clear that a valid accusatory pleading need not specify by number the statute under which the accused is being charged.” (People v. Thomas (1987) 43 Cal.3d 818, 826.) It is the specific allegations of the accusatory pleading that constitute the measuring unit for determining what offenses are included in a charge. (Ibid.)
The offenses enumerated in section 136.1 require proof of specific intent. (People v. Young (2005) 34 Cal.4th 1149, 1210; see also People v. Brackins (2019) 37 Cal.App.5th 56, 66).) However, unlike the offenses enumerated in section 136.1, subdivision (a), the offenses enumerated in section 136.1 subdivision (b) do not include an enhanced mens rea: the showing of malice. (Brackins, at pp. 66-67 [§ 136.1 contains a malice requirement for subd. (a) offenses but not subd. (b) offenses].) For purposes of witness intimidation, “ ‘ “[m]alice” means an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.' ” (Id. at p. 66; § 136, subd. (1).)
Prior to closing arguments, the trial court advised the jury that defendant was charged in count 4 with intimidating a witness in violation of “section 136.1.” The court then instructed the jury, pursuant to the pattern instruction (CALCRIM No. 2622), on the elements of witness intimidation in violation of section 136.1, subdivision (b)(2), rather than the elements of the charged offenses of witness intimidation in violation of section 136.1, subdivision (a)(1) or (a)(2). As relevant here, the jury was instructed as follows: “To prove that the defendant is guilty of [violating § 136.1], the People must prove, 1) The defendant maliciously tried to prevent or discourage or prevented or discouraged L.A. from cooperating or providing information so that a complaint could be sought and prosecuted and from helping to prosecute that action. [¶] 2) L.A. was a witness or a crime victim. [¶] And 3) The defendant knew he was trying to prevent or discourage or did prevent or discourage L.A. from cooperating with the prosecution of this action. A defendant acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way or intends to interfere in any way with the [orderly] administration of justice....” This was not a correct instruction.
When a defendant is charged with witness intimidation in violation of section 136.1, subdivision (a), the pattern instruction for this offense directs the trial court to instruct the jury with “Alternative 1A--attending or giving testimony.” (CALCRIM No. 2622.) The trial court did not do so here. Instead, it gave an erroneous modified version of “Alternative 1C--causing prosecution.” (Ibid.)
Defendant did not object to this instruction on the ground that he was not charged under section 136.1, subdivision (b)(2). Nor did either party object on the ground that a subdivision (b)(2) violation does not include a malice element. (See People v. Brackins, supra, 37 Cal.App.5th at pp. 66-67 [malice is required for violations of § 136.1, subd. (a) but not for violations of § 136.1, subd. (b)]; § 136.1, subds. (a), (b)].) The record does not disclose why the trial court did not instruct the jury with the charged offenses of witness intimidation in violation of section 136.1, subdivision (a)(1) or (a)(2).
In closing argument, the prosecutor argued the evidence showed that defendant maliciously attempted to prevent or discourage L.A. from giving testimony at trial, i.e., defendant was guilty of the charged offense of witness intimidation in violation of section 136.1, subdivision (a). In support of his position, the prosecutor referenced the July 24, 2019, jail phone call wherein defendant gave L.A. an alternative set of facts about the incident giving rise to her injuries and instructed her to go to the “DA place” and get the no-contact order lifted. The prosecutor argued that defendant's remarks during this phone call were an attempt to persuade L.A. to change her story about what had occurred. The prosecutor acknowledged that L.A. did not do so, but argued that defendant was successful in persuading her to testify that she could not recall who threw the bottle at her. The prosecutor also referenced the text message defendant sent to L.A. wherein he instructed her to recant her accusation of abuse. The prosecutor noted that defendant directed L.A. to “tell them” that she was angry or drunk or something like that.
Defense counsel argued that defendant did not maliciously attempt to prevent or discourage L.A. from cooperating with the prosecution of this action, i.e., defendant was not guilty of violating section 136.1, subdivision (b)(2). Counsel noted that defendant never instructed L.A. not to attend any court proceedings; he only directed her to go to the district attorney's office. Counsel characterized defendant's conduct as an effort to have L.A. go to the district attorney's office to “set the record straight” by telling the truth about what happened and “fix[] the restraining order.”
Following closing arguments, the jury was given a packet of written instructions, including an instruction on witness intimidation (i.e., count 4), which was identical to the oral instruction previously given. Thus, the jury was never instructed orally or in writing on the charged offense(s) of witness intimidation in violation of section 136.1, subdivision (a)(1) or (a)(2).
The jury was provided with a verdict form for count 4 that included only the charged offense of preventing/dissuading a witness/victim from testifying in violation of section 136.1, subdivision (a)(1). It returned a guilty verdict on this count.
B. Analysis
It is clear that the instruction on count 4 was error. The court did not instruct the jury on the elements of the charged offenses. Instead, the court (incorrectly) instructed the jury on the elements of an uncharged related offense--witness intimidation in violation of section 136.1, subdivision (b)(2). (See People v. Hallock (1989) 208 Cal.App.3d 595, 607 [reversing conviction for witness intimidation in violation of section 136.1, subdivision (b) where the jury was not instructed on that charged offense but rather the uncharged related offense of witness intimidation in violation of section 136.1, subdivision (a)].) Although the Attorney General argues defendant consented to allowing the jury to decide whether he was guilty of the uncharged related offense by failing to object to the jury instructions as given, we disagree.
Although defendant did not object to the trial court's instructions on count 4, he has not forfeited this issue on appeal because the error affects his substantial rights. (§ 1259 [an appellate court may review any instruction given, even though no objection was made thereto in the trial court, if the substantial rights of the defendant were affected by the instruction]; People v. Gutierrez (2018) 20 Cal.App.5th 847, 856, fn. 8 [“when an instruction allegedly affects the substantial rights of the defendant, it is reviewable even in the absence of an objection”].)
“ ‘ “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” [Citations.] “A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.”' ” (People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson).) A trial court lacks jurisdiction to enter a judgment of conviction for an offense that is neither charged nor necessarily included in the alleged crime. (People v. Lohbauer (1981) 29 Cal.3d 364, 369; see People v. Arias (2010) 182 Cal.App.4th 1009, 1017-1019 [reversing enhanced sentence for attempted first-degree murders where prosecution failed to plead offenses were willful, deliberate, and premeditated]; In re Fernando C. (2014) 227 Cal.App.4th 499, 502-505 [reversing judgment after juvenile adjudication for fighting in public place where prosecution charged only the separate offense of fighting on school grounds, which was not a “public place” under statutory scheme].)
The Attorney General does not contend that the offense of witness intimidation in violation of section 136.1, subdivision (b)(2) is a lesser included offense of witness intimidation in violation of section 136.1, subdivision (a); we agree that it is not. The two provisions have distinct elements, such that a violation of subdivision (a) is not necessarily a violation of subdivision (b)(2). And the allegations in the accusatory pleading do not describe the witness intimidation offense in such a way as to include all the elements of a violation of section 136.1, subdivision (b)(2), since the allegations simply track the language of section 136.1, subdivision (a). (See People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
Nor did the prosecutor seek leave to amend the accusatory pleading to include the offense of witness intimidation in violation of section 136.1, subdivision (b)(2). However, our Supreme Court has recognized, “in certain limited circumstances, ... informal, unwritten amendments as effective.” (Anderson, supra, 9 Cal.5th at p. 958.) Thus, we construe the Attorney General's argument on appeal as contending that defendant implicitly consented to an informal amendment of the accusatory pleading to allege the offense of witness intimidation in violation of section 136.1, subdivision (b)(2). As we shall explain, we find no merit in this argument.
“Under the Penal Code, an accusatory pleading may be amended for ‘defect or insufficiency, at any stage of the proceedings.' [Citation.] After the defendant has entered a plea, amending the accusatory pleading requires leave of court, which may be granted or denied in the court's discretion provided the amendment does not ‘change the offense charged' or otherwise prejudice the defendant's substantial rights.” (Anderson, supra, 9 Cal.5th at p. 958; see People v. Goolsby (2015) 62 Cal.4th 360, 367 [“An information may be amended ‘for defect or insufficiency, at any stage of the proceedings,' so long as the amended information does not ‘charge an offense not shown by the evidence taken at the preliminary examination.' ”].) “ ‘If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted.' [Citation.] If there is no prejudice, an amendment may be granted ‘up to and including the close of the trial.' ” (Goolsby, at pp. 367-368.)
In support of his position, the Attorney General relies on People v. Toro (1989) 47 Cal.3d 966, 978, disapproved on another ground by People v. Guiuan (1998) 18 Cal.4th 558. In Toro, the defendant was charged with attempted murder and assault with a deadly weapon. (Toro, at p. 970.) The jury was instructed on, and received verdict forms for, the charged offenses, as well as for the uncharged related offense of battery with serious bodily injury. (Id. at p. 971.) Our Supreme Court held that the defendant's failure to object on notice grounds to the inclusion of a lesser related offense on the verdict form forfeited his inadequate notice claim on appeal. (Id. at pp. 976-977.) The court considered the failure to object as implied consent to treat the information as informally amended to include the lesser related offense. (Ibid.) But the Toro court's willingness to imply the defendant's consent to amend from his silence rested on considerations specific to that situation. The court emphasized that “submission of lesser related offenses to the jury enhances the reliability of the fact-finding process to the benefit of both the defendant and the People.” (Id. at pp. 969-970, italics added; see also id. at p. 977 [“Lesser related offense instructions generally are beneficial to defendants and in a given case only the defendant knows whether his substantial rights will be prejudicially affected by submitting a lesser related offense to the jury”].) This was true in Toro itself, where submission of the lesser related instruction to the jury permitted the defendant to escape far more severe punishment for an admitted act of violence. (Id. at pp. 970-971 [explaining that the defendant, who had initially been charged with attempted murder and assault with a deadly weapon, put on no defense at trial and conceded he had stabbed the victim and had inflicted great bodily injury upon him; trial court was entitled to imply the defendant's consent to submit lesser related charge of battery with serious bodily injury for the jury's consideration].) In concluding that the informal, unwritten amendment was effective, the Toro court drew support from out-of-state cases holding that “instructing on a nonincluded offense may not be cited as error on appeal if the defendant had an opportunity to object to the instructions but failed to do so and the offense is lesser in degree and penalty than the charged offense.” (Id. at p. 977, italics added.)
Toro is inapposite. Unlike in Toro, in which the jury was given the option of convicting the defendant on a lesser related uncharged offense, the jury in this case was instructed with an uncharged related offense that carried the same penalty range as the charged offense: one year in county jail or a prison term of 16 months, or two or three years. (§§ 136.1, subds. (a) & (b), 1170, subd. (h)(1).) Because defendant derived no possible benefit from submitting the uncharged related offense to the jury, there is no reason to presume from defense counsel's silence that defendant consented to this procedure. (See Anderson, supra, 9 Cal.5th at p. 959.) Moreover, contrary to the Attorney General's contention, and unlike in Toro, the jury in this case found defendant guilty of the charged offense (§ 136.1, subd. (a)(1)), not the uncharged offense (§ 136.1, subd. (b)(2)). And the jury in this case, in contrast to Toro, was not instructed on the elements of the charged offense. Although unclear, it appears that the drafting of the witness intimidation instruction may have been a mistake that neither party caught. Indeed, the instruction, as we have noted ante, erroneously included a malice element that is a requirement of the charged offense (§ 136.1, subd. (a)) but not of the related uncharged offense (§ 136.1, subd. (b)(2)). During closing argument, the prosecutor argued that defendant was guilty of the charged offense because he “maliciously tried to prevent or discourage L.A. from giving testimony at this trial, ” and the verdict form for count 4 stated that the witness intimidation offense was based on a violation of section 136.1, subdivision (a)(1). Under the circumstances presented, we cannot conclude that an informal amendment of the accusatory pleading occurred here.
In his reply brief, defendant points out that where, as here, a defendant waives a preliminary hearing, the accusatory pleading cannot be subsequently amended to add additional charges, citing People v. Peyton (2009) 176 Cal.App.4th 642, 653-655 [reversing conviction for count added after the defendant waived a preliminary hearing] and People v. Winters (1990) 221 Cal.App.3d 997, 1007-1008 [same]. While it is true that a preliminary hearing was waived in this case as to the corporal injury count and the assault with a deadly weapon count (i.e., counts 1 and 2), the appellate record does not disclose whether a preliminary hearing was waived as to the witness intimidation count (i.e., count 4). Six counts were added to the information, including the witness intimidation count, after the trial court granted the prosecution's motion to consolidate the information in this case with the information filed in two separate but related cases.
Although the Attorney General argues no prejudice appears, we disagree. “ ‘The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.' [Citation.] Failure to do so is a ‘very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. [Citations.] All criminal defendants have the right to “a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”' [Citation.] The error is reversible unless ‘it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.' ” (People v. Rivera (2019) 7 Cal.5th 306, 332-333.) On this record, we cannot conclude that the instructional error was harmless beyond a reasonable doubt. Accordingly, we reverse defendant's conviction on count 4.
III
Sufficiency of the Evidence
When, as here, a judgment is reversed for legal error, retrial is permitted unless there was insufficient evidence adduced at trial to support a conviction. (See People v. Morgan (2007) 42 Cal.4th 593, 613; People v. Hallock, supra, 208 Cal.App.3d at pp. 605-610 [jury instructed on theory of § 136.1 witness intimidation not supported by the evidence, but substantial evidence supported conviction on different theory of witness intimidation, so retrial was allowed].) “ ‘[A]n appellate ruling of legal insufficiency is functionally equivalent to an acquittal and precludes a retrial.' ” (People v. Story (2009) 45 Cal.4th 1282, 1295.)
“ ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”' [Citation.] ‘Substantial evidence' is evidence which is ‘ “reasonable in nature, credible, and of solid value.”' ” (People v. Morgan, supra, 42 Cal.4th at pp. 613-614.)
We conclude there was not sufficient evidence from which a reasonable jury could have found defendant guilty of witness intimidation in violation of section 136.1, subdivision (a) (count 4). There was limited to no evidence that defendant actually attempted to prevent or dissuade L.A. from attending or giving testimony at any trial, proceeding, or inquiry authorized by law, although there was evidence of other crimes.
The evidence may have been sufficient to support a finding that defendant violated section 136.1, subdivision (b)(2) by attempting to prevent or dissuade L.A. from causing a complaint and/or information to be sought and prosecuted, and assisting in the prosecution thereof. (See People v. Velazquez, supra, 201 Cal.App.4th at pp. 232-233.) Or, the evidence may have supported a finding that defendant attempted to persuade L.A. to give false or withhold true testimony in violation of section 137, subdivision (c), by inducing her to testify as to his version of events; namely, that she was injured during an altercation with her neighbors. (See § 137, subd. (c) [inducing witness to give false testimony or withhold true testimony]; People v. Fernandez, supra, 106 Cal.App.4th at pp. 948-950 [§ 137 criminalizes a defendant's effort to change the content of a witness's testimony].) However, those violations were never charged or adjudicated.
Following his arrest and incarceration, defendant urged L.A. to recant her accusation of abuse and to adopt a different version of events as to how she sustained her injuries. During a jail phone call, defendant told L.A. that she had been injured during an altercation with her neighbors. He claimed that one of the neighbors threw a bottle at her while he was defending her and their child. He instructed her to go to the district attorney's office and “get daddy home.” He indicated that he was facing nine years in prison and that he needed her to say that the police were falsely accusing him of breaking into her residence and assaulting her. In another jail call, defendant told L.A. that the police report stated that she and her mother had accused him of throwing a champagne bottle at her during an argument. He then told L.A. the same story about the altercation with the neighbors, and noted that the district attorney did not believe this version of events. Shortly thereafter, he indicated that he was facing 10 years in prison, but he was “takin' [the case] to trial” because he “didn't do” what he was accused of doing and he was hoping that his “wife comes in and fuckin' backs [him] up.” In a video conference call, defendant told L.A. and her mother to “go down to that fucking place” because “[t]hey're going off what you said.” In making this statement, defendant indicated that he had reviewed the “report” and that it broke his heart to read what L.A. and her mother had said. In a text message, defendant told L.A. to call the “Attorney Office” and to tell them the “TRUTH” of his “innocence.” In another text message, defendant told L.A. that she and her mother needed to go see his attorney and “recant/take back their statement[s], ” and explain that “what was said was said because [L.A.] was drunk/outta anger.” Defendant warned L.A. that if she and her mother failed to do so, “there's a possibility the state will pick up charges.” There is no evidence that defendant tried to prevent L.A. from giving testimony, just that he tried to tell her what to say. In view of our conclusions, double jeopardy principles prohibit retrial on the charged violation of section 136.1, subdivision (a).
This jail phone call took place on July 24, 2019. The accusatory pleading alleged that the conduct giving rise to the witness intimidation offense occurred on or about this same date.
The communications referenced in this paragraph occurred between July 24, 2019, and September 13, 2019. The complaint was filed on July 24, 2019, and the consolidated information charging defendant with witness intimidation was filed on December 23, 2019.
DISPOSITION
Defendant's conviction on count 4 for intimidating a witness in violation of section 136.1, subdivision (a)(1) is reversed and that count cannot be retried. In all other respects, the judgment is affirmed.
We concur: Robie, Acting P. J. Murray, J.