Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MF031616A
NICHOLSON, J.
A jury found defendant Isac Estrada guilty of dissuading a witness by force or threat of force in association with a street gang, and the substantive offense of active participation in a street gang. The trial court sustained one of two allegations that defendant had a prior conviction within the meaning of Penal Code section 667, subdivision (d), and an allegation that defendant served a prior prison term (Pen. Code, § 667.5, subd. (b) [undesignated section references will be to the Penal Code].) After denying defendant’s request to strike the prior-conviction finding pursuant to section 1385, the court imposed a doubled lower term (§ 667, subd. (e)) for dissuading a witness, a one-year enhancement for the prior prison term, and a consecutive indeterminate sentence of seven years to life for the gang enhancement (§ 186.22, subds. (b)(4)(A) & (C)). It stayed sentence on the substantive gang offense. (§ 654.)
The court denied the prosecutor’s motion for a new trial on the dismissal of the other allegation. The prosecutor filed a notice of appeal, but the People have abandoned the appeal.
On appeal, defendant argues there is insufficient evidence to support his conviction for dissuading a witness, the trial court erred in failing to strike the prior-conviction finding, and the trial court erred in imposing a determinate sentence for the underlying offense (and enhancement) and an indeterminate sentence as a consecutive term. The People agree with the latter argument, but assert that the minimum indeterminate term must be doubled (§ 667, subd. (e)). We accept the concession, agree with the People’s assertion, and remand with directions.
Pursuant to this court’s miscellaneous order number 2010-002, filed March 16, 2010, we deem defendant to have raised the issue whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. However, because defendant’s prior and present convictions are for violent and “serious” felonies (§§ 136.1; 211; 667.5, subds. (c)(9) & (c)(20); 1192.7, subds. (c)(19) & (c)(37)), he is entitled to presentence conduct credits only at the prior rate of two days for every four-day period of actual custody (§§ 4019, subds. (b)(2), (c)(2) & (f); 2933.1).
FACTS
In July 2008, a group of four teenagers beat the victim. He knew two of them by sight from his neighborhood, and did not have any history of animosity with them. He knew one of them was involved in a gang active in the neighborhood. He was scheduled to testify against them in a juvenile court proceeding on August 14, 2010.
At some point between the attack and the scheduled court proceeding, the victim bought some cigarettes at a market and was going to walk to his girlfriend’s home around the corner. Two men intercepted him at the corner. One of them asked him to wait and talk with them for a minute. They flanked him as they walked with him across the street to the front of a duplex where defendant lived with his girlfriend and children.
The speaker made a reference to the previous attack on the victim and the imminent juvenile court date, and said the juveniles should not be going back to court. The speaker said that what happened in the street should stay in the street. He said, if the victim stayed out of court, “the whole incident with [the four guys] would be dropped and everything would be squashed” without any further repercussions. However, he said, “[I]f [the victim] went to court, [he] didn’t know what would happen.” The victim identified defendant as the spokesman for the duo. His silent partner was tall and muscular. As he had with two of the four juvenile assailants, the victim had previously seen defendant around the neighborhood (and was aware that he lived in the duplex), and there had not been any past conflicts with him. The victim had not previously associated defendant with the attackers or the neighborhood gang, but it was clear to him that defendant was making reference to the attack on the victim and the imminent court date involving it. The victim saw a tattoo on defendant that he associated with the gang that was active in the neighborhood.
Defendant does not challenge the sufficiency of the victim’s identification of him. We therefore omit any disputes in the testimony regarding this issue, or regarding his defense of alibi.
The victim “looked at both of them and said yeah. Because I really didn’t want to sit there and tell them no.” The victim felt threatened because the two men had approached him in such a way that he did not feel he had any choice about talking to them, and then they walked on either side of him. The victim believed that there would be physical action against him “[i]f not on that day, later....” The two men then went into defendant’s duplex.
The victim could not recall the exact date of the incident. He was certain it had happened in the late afternoon, and it was likely a weekday because he did not recall any children running around.
He first reported the incident to an officer who had come to bring him to the juvenile court on August 14 after he failed to appear. He told the officer that defendant’s conduct made him think that defendant was a “shot caller” for the gang. The victim told the officer he was reluctant to testify as a result, and testified he was also reluctant to testify in the present criminal proceedings. He was aware that people who testified against gangs got beaten. When the officer appeared at the hearing with the victim, the two juveniles entered pleas.
An officer testified that one of the juveniles was a self-admitted member of the gang active in the neighborhood; another was an active gang member as well. He also offered the opinion that defendant was a member of the gang, based on his observations over the course of more than 10 years of things such as defendant’s “[t]attoos. [His] history with the Ripon Police Department. The attire he wears. His haircut. And the way he presents himself and who he hangs around with on the streets.” The officer was aware that defendant associated with at least one of the juveniles who attacked the victim. Defendant told the officer that he was not an active gang member in August 2008, and the officer could not document any evidence of active gang membership since March 2007 other than the addition of a tattoo. The officer nonetheless believed that defendant was simply being evasive.
DISCUSSION
I
Defendant asserts there is insufficient evidence that he restrained or touched the victim in any manner. He also asserts the evidence does not establish either an express or implied threat of force or violence (in the latter context arguing that there was also an absence of any overt references to gangs from which the victim could infer a threat of force or violence). This argument disregards the standard of review, in which we must view the evidence in favor of the judgment. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.)
While defendant and his partner may not have physically manhandled the victim in any way, they diverted the victim from his intended route and overpowered his will when they flanked him and caused him to remain in front of defendant’s residence against his will. The victim knew at least one of his earlier attackers was a member of the same gang with which defendant’s tattoo was associated. Defendant made reference to the earlier attack and the victim’s imminent court appearance in connection with it. Defendant may not have made an express threat of force against the victim, but the tenor of his remarks were unambiguous, and the victim was well aware that people who cooperated with the legal system in its efforts to suppress the gang’s activities were at risk of physical violence. A rational juror could conclude that a statement regarding the unknown possible results of the victim’s testimony in the juvenile proceedings was an implied threat of the usual consequences of bearing witness against the gang (the victim indeed interpreted them in this manner). (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1343-1345 [as long as words support an inference of attempt through threat of force to induce person to withhold testimony, there is sufficient evidence to support conviction].) We therefore reject this argument.
II
A
Before the sentencing hearing, defense counsel filed a brief in which he asked the trial court to exercise discretion under section 1385 to strike the finding defendant had a prior conviction within the meaning of section 667, subdivision (d). He highlighted the minor nature of the present offense (in which defendant did not carry out any implied threat), the lengthy indeterminate term he would still be serving, and the minor nature of the prior conviction as to which the court had declined to sustain a recidivist finding. Earlier in the brief (in connection with a request under section 17 to treat the substantive gang offense as a misdemeanor), defense counsel had also adverted to the positive testimony at trial from defendant’s parole officer, employer, and girlfriend regarding defendant’s characteristics and prospects. He reiterated the latter point at the sentencing hearing. The prosecutor focused on the threat that conduct such as defendant’s posed to the legal system, and defendant’s long participation in the gang. In denying the request to exercise its discretion, the trial court noted defendant’s history of misdemeanors and infractions that predated his first felony conviction in 2002, and his commission of two additional felonies in the 13 months that followed. The court considered these to be relatively recent convictions, and concluded that, “I do not see any legal reason why that [section] 211 [conviction] should be stricken.”
B
A court may exercise its discretion under section 1385 to strike a finding that a prior conviction comes within the meaning of section 667, subdivision (d) if, and only if, a defendant can be “deemed outside the... spirit” of the statute, without any consideration of “extrinsic” factors such as court congestion or antipathy to the sentencing consequences for the defendant, and giving “preponderant weight” to factors inherent in the statute such as the nature and circumstances of the present and previous felony convictions, and the defendant’s own background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) The burden is on defendant to demonstrate that the trial court’s decision was irrational or arbitrary, rather than being one of alternative reasonable readings of the facts before the court, which requires him to overcome the “strong” presumption that a court’s denial of a request to exercise discretion under section 1385 is proper. (People v. Carmony (2004) 33 Cal.4th 367, 376-377, 378.)
On appeal, defendant baldly asserts an abuse of discretion, but does not do anything more than reargue the facts that were before the trial court, which purported to show defendant’s efforts to be a law-abiding and productive citizen in the 17 months between his release from prison in March 2007 and the present offense. That the trial court did not find this recent and short-lived apparent change in behavior to be determinative in deciding whether defendant was outside the spirit of the law (particularly where the present offense was in support of members of the gang with which defendant had a long connection) does not mean that the court ignored this evidence. Defendant wistfully claims “[a] sentencing court... could have”decided differently (italics added), but that is a far cry from demonstrating that the trial court’s choice was unreasonable. (E.g., People v. Cluff (2001) 87 Cal.App.4th 991, 994, 1004 [suggesting failure to strike recidivist finding would be abuse of discretion only where present offense is a technical violation].) That is mere speculation. We therefore reject his argument.
III
When a jury sustains an enhancement for an underlying offense that benefits a street gang, a determinate enhancement of the punishment for the underlying offense generally results. (§ 186.22, subd. (b)(1).) However, for certain specified offenses (§ 186.22, subd. (b)(4)) or for any offense that has an indeterminate life term as punishment (§ 186.22, subd. (b)(5)), there is an alternative sentencing scheme involving indeterminate life terms that have various minimum lengths. Dissuasion of a witness is among the specified crimes for which the alternative sentence is a minimum indeterminate term of either seven years to life, or the length of the determinate term for the underlying offense, if longer. (§ 186.22, subds. (b)(4)(A) & (C).) (Cf. People v. Jefferson (1999) 21 Cal.4th 86, 101 [subd. (b)(5) of statute is not enhancement but is an alternate penalty for underlying felony] (Jefferson); People v. Sok (2010) 181 Cal.App.4th 88, 96 [same with respect to subds. (b)(4)(A) & (B) of statute, which specifies minimum term of either 15 years or the length of the determinate term for the underlying offense, if longer] (Sok).) Thus, as the People properly agree, the trial court improperly structured the sentence -- the court should have imposed only the indeterminate term, not a consecutive enhancement to the determinate term that would otherwise have applied.
Moreover, as the People correctly point out, the minimum indeterminate term must be doubled pursuant to section 667, subdivision (e)(1). (Cf. Jefferson, supra, 21 Cal.4th at p. 101 [§ 667, subd. (e)(1) applies to § 186.22, subd. (b)(5)]; Sok, supra, 181 Cal.App.4th at p. 96 [same with respect to § 186.22, subds. (b)(4)(A) & (B)].) Although defendant in his reply brief tries to divine implied legislative intent to distinguish Jefferson and subdivision (b)(5) of the statute, he does not provide any legal authority or cogent reason to depart from application of “the clear language of section 667, subdivision (e)(1)” (Sok, supra, 181 Cal.App.4th at p. 97) in the present context.
DISPOSITION
The judgment is reversed and the matter remanded to impose an indeterminate life sentence of 14 years to life on count 1.
I concur: BUTZ, J.
I concur in the result: BLEASE, Acting P. J.