Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F03610
OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT
SIMS, J.
Defendant Rocky Devon Froemel was accused of assault with a deadly weapon against Shannon Capurro (Pen. Code, § 245, subd. (a)(1); undesignated section references are to the Penal Code; count 1); making criminal threats against Capurro (§ 422; count 2); attempting to prevent or dissuade Capurro from causing a crime to be prosecuted and assisting in its prosecution (§ 136.1, subd. (b)(2); count 3); and attempting to prevent or dissuade Capurro from testifying (§ 136.1, subd. (a)(2); count 4). In addition, he was accused of having four prior convictions for assault with a deadly weapon, serious felonies that counted as strikes (§§ 667, subds. (a), (b)-(i), 1170.12).
On motion by the prosecution, the trial court dismissed counts 1 and 2 before trial. A jury thereafter convicted defendant on the former counts 3 (attempting to prevent or dissuade Capurro from causing a crime to be prosecuted and assisting in its prosecution) and 4 (attempting to prevent or dissuade Capurro from testifying), renumbered counts 1 and 2. Defendant then waived court trial of the priors and admitted them.
The trial court granted defendant’s motion to strike one prior strike (§ 1385), then sentenced him to 16 years in state prison (the upper term on count 1, doubled under Three Strikes, plus two five-year enhancements for the serious felony convictions, with sentence on count 2 stayed).
Defendant originally contended: (1) Insufficient evidence supports his conviction on count 2. (2) Trial counsel was ineffective for failing to request a limiting instruction as to a letter introduced in evidence. (3) The trial court erred reversibly by ordering incomplete disclosure of material potentially favorable to defendant’s case. (4) The imposition of the upper term violated Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
After we filed our first opinion in this matter, in which we rejected all of defendant’s contentions and affirmed the judgment, the United States Supreme Court decided that California’s Determinate Sentencing Law violated Apprendi and Blakely so far as it permitted imposition of the upper term based on any fact, other than a prior conviction, not tried to the jury and found true beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham)). Upon defendant’s petition for writ of certiorari, the high court thereafter vacated our original opinion and remanded the matter to this court with directions to reconsider it in light of Cunningham. We requested and received supplemental briefing from the parties on the issue. Concluding that any possible error in sentencing was harmless beyond a reasonable doubt, we shall once again affirm the judgment.
FACTS
Capurro, the victim, is the developmentally disabled adult daughter of Della Hamilton (defendant’s girlfriend when the alleged crimes began, his wife by the time of trial). Capurro has a daughter who was five years old in 2004. Beginning in March 2004, Capurro received assistance from Training Towards Self-Reliance (TTSR); her social worker was Rachel Frederick.
Defendant and Hamilton moved in with Capurro in late March 2004. In early April, Capurro filed a police report about an incident in which defendant allegedly pulled a knife on her. (This alleged conduct gave rise to the original counts 1 and 2, later dismissed.)
Capurro notified Frederick about the situation. TTSR placed Capurro and her daughter in emergency housing at the Econo Lodge motel in downtown Sacramento. On April 19, 2004, the police arrested defendant and informed Capurro of the arrest.
Beginning on the date of his arrest, defendant made numerous telephone calls to Hamilton from jail, which were recorded by the jail authorities. The recordings were played at trial, and the jury received transcripts.
The transcripts were not offered in evidence, but the parties do not question their accuracy.
In the first call, made within a few hours of defendant’s arrest, he told Hamilton: “It’s your fucked-up daughter. She made a big mistake. You understand me?” He also told her Capurro was “over at the Econo.” Hamilton replied that she believed Capurro was not there anymore. Defendant said: “You better find her. That’s what you better do. [¶] . . . [¶] . . . You better find her and you tell her, ‘You go down there and drop the charges . . . .’” Hamilton said she had already delivered that message to Capurro through a third person. Defendant replied: “You better make sure she does. And you tell her she don’t know . . . [¶] . . . [¶] . . . You can tell her she doesn’t know what kind of mistake she’s made.” Defendant insisted he would “never forget it.” Furthermore, he told Hamilton, “I expect you to do something about it.” He advised her to have all of Capurro’s belongings put “outside, ” “[u]nless she wants to fucking drop these charges.”
In another call on the same date, defendant told Hamilton “[i]t’s your fault” because “[y]ou had the dumb bitch, ” so it was up to her to do something about it. He said: “[W]hy don’t you just track her down[?]” He told Hamilton: “[Y]ou need to fucking work on getting her and finding her. [¶] . . . [¶] . . . You put the fucking pressure to her.” Hamilton “need[ed] to think of it as that’s your responsibility.”
In a call made the next day (April 20, 2004), after Hamilton said she would get Capurro committed, defendant replied: “But before you do that, grab her ass and drag her downtown to the District Attorney’s Office. [¶] . . . [¶] . . . [M]ake her refile [sic] the charge.” He added: “You tell that bitch she fucked up. I catch her, she’s done. [¶] . . . [¶] . . . She ought to be thinking about herself.”
On April 22, 2004, Capurro called Frederick, her social worker, from the motel. When Frederick came over, Capurro told her Hamilton had visited the day before, threatening that she would kidnap Capurro’s daughter and that she and defendant would physically harm both Capurro and her daughter unless Capurro went to the District Attorney’s Office immediately, told them she had lied about defendant, and got the charges dropped. Hamilton had also made threatening phone calls to Capurro. Because of the threats, Capurro had walked to the District Attorney’s Office with her daughter and Hamilton and claimed she had lied about defendant; at Hamilton’s insistence, Capurro also called the police and said the same thing.
A Sacramento police community services officer confirmed that Capurro did so on April 21, 2004.
Crying and shaking with fear, Capurro asked Frederick what she should do. Having known Capurro for a month and a half, Frederick took her seriously; she did not think Capurro had the capacity to fabricate a story or to manipulate the system. Capurro was relocated to another motel.
In early August 2004, two sheriff’s deputies conducted a search of defendant’s jail cell, which he occupied alone. In a notebook on defendant’s bed, they found a letter addressed to Hamilton and another letter bearing no addressee’s name or date. The second letter read as follows (unnecessary capitalization omitted): “Are you down for me? How much do you love me? One thing needs to happen to set me free at trial! Pay atention [sic], take a rock, about the size of a baseball[, ] make death threat [sic] ‘if you testify’ -- tape it to the rock and toss it threw [sic] Mercys [sic] window abat [sic] 2 or 3 am [sic] then create a ruckess [sic] and start yelling Pinnocheos [sic] name.”
“Mercy” (actually “Merci”) was identified by Hamilton at trial as a friend of the family who knew Capurro.
Hamilton (now Della Froemel) was defendant’s only witness. On direct examination, she testified that she visited Capurro at the Econo Lodge on April 21, 2004, because they had spoken on the phone the night before and Capurro’s daughter had wanted to see Hamilton; she then accompanied Capurro to the District Attorney’s Office and to the jail for defendant’s arraignment. According to Hamilton, she and defendant were angry at Capurro because Capurro had lied to get defendant arrested. However, he never told Hamilton to try to dissuade Capurro from being a witness, and Hamilton never did so.
On cross-examination, confronted with the transcripts and tapes of the jail calls, she claimed she could not remember the conversations; she also claimed she did not understand at the time what defendant meant by “[p]ut the fucking pressure to” Capurro. Asked whether she was “down for” defendant, she said: “I am down for him because he’s my husband.”
DISCUSSION
I
Defendant contends there was insufficient evidence to support his conviction on count 2 under section 131.6, subdivision (a)(2) (attempting to dissuade a victim from attending or testifying in a court proceeding). He argues that his real offense was a misdemeanor violation of section 137, subdivision (c) (inducing false testimony), which was not charged. He is mistaken.
When addressing an insufficient-evidence contention, we consider only whether substantial evidence -- i.e., evidence which is reasonable, credible, and of solid value -- supports the verdict. In doing so, we consider the evidence, including all reasonable inferences from it, in the light most favorable to the verdict. (People v. Horning (2004) 34 Cal.4th 871, 901; People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 136.1, subdivision (a)(2), prohibits “[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.”
Section 137, subdivision (c) (the only part of section 137 that defendant quotes), provides: “Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official is guilty of a misdemeanor.”
Although defendant (working through Hamilton) expressly sought only to terrorize Capurro into dropping the charges against him and did not articulate a “plan B, ” the jury could reasonably have inferred that he also meant to terrorize her into failing to appear and testify at trial in case the charges were not dropped. His calls to Hamilton and the letter found in his cell did not suggest inducing Capurro to change her testimony at trial or propose any testimony she should give. Rather, along with the message to drop the charges, he told Hamilton to tell Capurro she should be “thinking about herself” and if he caught her “she’s done.” And his letter instructed its intended reader (whom the jury could reasonably infer to have been Hamilton) to tape a message conveying a “death threat ‘if you testify’” to a rock and throw it through a mutual acquaintance’s window. This evidence all pointed to the same conclusion: if defendant could not get the charges dropped, Capurro would have to be scared out of appearing at trial and testifying.
Defendant cites Capurro’s testimony that Hamilton told her she “had to go lie.” However, Capurro was not talking about lying on the witness stand. She was talking about the “lie” Hamilton wanted her to tell the District Attorney -- i.e., that her charges against defendant were false -- in order to get them dropped.
Defendant relies on People v. Fernandez (2003) 106 Cal.App.4th 943 (Fernandez) and People v. Womack (1995) 40 Cal.App.4th 926 (Womack). Neither decision is on point. But so far as they are relevant to this case, they refute defendant’s position.
In Womack, supra, 40 Cal.App.4th 926, the defendant was convicted of attempted murder and of attempting to induce the would-be murder victim to give false or to withhold true testimony (§ 137, subd. (b)); he was not charged under section 136.1. (Womack, supra, 40 Cal.App.4th at pp. 928-929.) The victim, a prospective witness against a person the defendant knew, was ambushed, strangled, and stabbed by the defendant and another person, who told him he “should have kept his mouth shut” and “should have left it alone.” (Ibid.)
The appellate court found the evidence did not support defendant’s conviction under section 137. The court noted that generally “[t]he intent to influence testimony is incompatible with the intent to kill, ” and the defendant here did not tell the victim what he should or should not say, but only that he had already made a fatal mistake. (Womack, supra, 40 Cal.App.4th at pp. 933-934.) The court rejected the People’s argument that the defendant had the required intent under section 137 because he meant to “influence” the witness’s testimony by preventing it from happening (cf. § 136.1): “[Section 136.1] clearly contemplate[s] that the perpetrator will prevent or dissuade a prospective witness from giving testimony, or will attempt to do so. Preventing or dissuading a witness from testifying altogether is incompatible with influencing or shaping the testimony the witness gives.” (Womack, supra, 40 Cal.App.4th at p. 931.)
In Fernandez, supra, 106 Cal.App.4th 943, the defendant was convicted under section 136.1, subdivision (b)(1), which prohibits an attempt to prevent or dissuade a victim from “[m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.” The only issue was whether a “report . . . to any judge” includes a victim’s testimony at a preliminary hearing. The court held it does not. (Fernandez, supra, 106 Cal.App.4th at p. 945.)
Relying on Womack, supra, 40 Cal.App.4th 926, the court in Fernandez rejected any attempt to blur the distinctions among the statutes comprising part I, title 7, chapter 6 of the Penal Code (§§ 132-141), “which establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses.” (Fernandez, supra, 106 Cal.App.4th at pp. 948-951.) The court pointed out: “[W]hen the Legislature intends to penalize an effort to influence or prevent testimony, or an effort to prevent the defendant from appearing in court, it does so explicitly.” (Id. at p. 949.) The court noted that the Legislature did so in section 136.1, subdivision (a), among other provisions, whereas subdivision (b) does not mention courts or testimony. (Fernandez, supra, 106 Cal.App.4th at p. 949.)
In short, Womack and Fernandez refute defendant’s attempt to blur the distinction between section 136.1, subdivision (a), and section 137. Attempting to prevent or dissuade a witness from appearing and testifying at trial is not the same thing as attempting to influence the witness’s testimony. Here, as in Womack, there is no evidence that defendant simultaneously harbored the intents to do both. While he might have preferred as a last resort that Capurro give false testimony rather than true testimony, like the defendant in Womack he never suggested any false testimony she should give. (Womack, supra, 40 Cal.App.4th at pp. 933-934.) All his efforts were directed to ensuring she gave no testimony whatever -- by frightening her into dropping the charges as the best-case scenario, but if that failed, then by frightening her into failing to appear at trial.
Sufficient evidence supports defendant’s conviction on count 2.
II
Defendant contends his trial counsel was ineffective for failing to request that the jury be instructed to consider the letter found in defendant’s cell only as evidence of his state of mind. We conclude such an instruction was not required, but even if it should have been given defendant cannot show prejudice from its absence.
Background
After the People rested, defense counsel moved to dismiss “[c]ount 3” (i.e., count 1 as renumbered), which he called “the count that related to the letter that was found in the cell in August.” He argued that the evidence to support this count was legally insufficient because the letter did not prove an attempt, but merely preparation.
The prosecutor replied that this count did not relate only to the letter, but covered defendant’s entire course of conduct. The prosecutor agreed with the trial court that the two remaining counts “are merely alternative statements of the same criminal or alleged criminal act” and that the letter “is not, per se, the corpus of [this c]ount, but it also . . . includes whatever telephonic communication or activities Ms. Della Hamilton Froemel or others may have engaged [in.]” He added that the letter “goes to show a state of mind which is the key issue in this case.”
Defense counsel replied that if the letter was not offered as the corpus of any crime, he withdrew his prior agreement to allow it into evidence and objected to it as irrelevant. He also requested an instruction that the jury “not . . . consider any evidence that was taken based upon the letter.”
After denying the motion to dismiss count 1, the trial court overruled counsel’s objection to the letter’s admission in evidence and impliedly denied his request for an instruction to disregard the letter. The court found that so far as the letter was offered to prove defendant’s state of mind, it was relevant to help explain his actions as to count 2 (§ 136.1, subd. (a)(2)).
Analysis
Defendant cites authority for the uncontroversial proposition that the trial court should give a limiting instruction on request where the jury might otherwise consider evidence for an improper purpose. However, he does not cite authority to support his claim that this jury would have been likely to consider this evidence for an improper purpose without a limiting instruction. On the whole record, we find this claim unpersuasive.
The trial court correctly instructed the jury on the elements of the offenses charged in both counts. The court also instructed the jury on the two theories (conspiracy, aiding and abetting) under which defendant could be found guilty on these facts.
The prosecutor then explained that both charges went to defendant’s entire course of conduct. He mentioned the letter briefly on the issue of defendant’s specific intent, but devoted most of his argument to defendant’s calls and Hamilton’s actions in response to them.
In his argument, defense counsel called attention to the letter, asserting it had no probative value because it never reached any recipient. In rebuttal, the prosecutor read out the letter and asserted it showed defendant’s state of mind and intent. The prosecutor never claimed the letter alone sufficed to prove either offense.
Under all the circumstances, we do not see any possibility that the jury believed it could convict defendant on either charge based on the letter alone. Thus a limiting instruction about the letter was unnecessary.
But even if such an instruction should have been given, defendant cannot show counsel was ineffective for failing to request it. To prove ineffective assistance of counsel, a defendant must show there could have been no reasonable tactical purpose for counsel’s act or omission; he must also show a more favorable outcome was reasonably likely if counsel had not performed ineffectively. (People v. Maury (2003) 30 Cal.4th 342, 389.) Defendant cannot show either.
Trial counsel was not asked why he did not request a limiting instruction, but it appears that once he failed to have the letter excluded and the jury instructed to disregard it, he decided his best course was to argue its insignificance. It was to the People’s advantage, not defendant’s, to focus the jury’s attention on the letter’s relevance to his state of mind. In any event, given the overwhelming evidence of his phone calls
and Hamilton’s conduct in response to them, there is no reasonable probability defendant would have fared better had a limiting instruction about the letter been given.
III
Defendant contends the trial court erred reversibly by ordering incomplete disclosure of Capurro’s mental health records. He asks us to examine the records. Having done so, we find no error.
Defendant requested disclosure of Capurro’s records from the Sacramento County Mental Health Treatment Center, as to which the Center had invoked psychotherapist-patient privilege. Defendant sought information as to any episodes in which Capurro exhibited a “psychotic or . . . delusional state” and as to whether any such episodes were caused by narcotics. Defense counsel explained that the defense believed Capurro suffered from “a narcotic-induced psychosis . . . [which] goes directly to [her] credibility[.]”
Having reviewed the records in camera, the trial court stated that they disclosed incidents occurring in 1994, 1996, 1997, and 2004. Defense counsel requested release of all of the records to the defense.
The court released the records of the last three incidents to the defense, but denied release of the earliest. The court found that the 1996, 1997, and 2004 records contained information potentially relevant to Capurro’s credibility; however, the 1994 incident “is dissimilar, remote and in my judgment does not contain or reflect anything in the medical records that would add anything of materiality or relevancy to the issues before the Court.”
As defendant acknowledges, it is now the law in California that trial courts are not required, “at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers.” (People v. Hammon (1997) 15 Cal.4th 1117, 1119.) Defendant appears to assert that Hammon should be restricted to its facts, but cites nothing from the opinion to support such a narrow reading. Nevertheless, even if defendant was entitled to the pretrial discovery he received, we conclude that the trial court’s refusal to release the 1994 records was correct.
As noted, defendant argued the records were material to Capurro’s credibility because they might show she had a “narcotic-induced psychosis.” However, as we have determined, the records of the 1994 incident show no evidence of present or past narcotics use by Capurro as of that time. Thus, under the defense’s own theory these records were not material. Even if defendant was entitled to any of Capurro’s mental health records pretrial, he was not entitled to these.
IV
Defendant contends that his upper term sentence on count 1 violated Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We disagree. As we shall show, the trial court imposed the upper term primarily based on defendant’s prior convictions, a fact which need not be tried to the jury under Cunningham.
(Cunningham, supra, 459 U.S. ___, ___ [166 L.Ed.2d at p. 873].) To the extent the court used other aggravating factors, any error was harmless beyond a reasonable doubt.
Background
The probation report, which the trial court stated before imposing sentence that it had read and considered, showed that defendant had admitted two prior felony convictions which counted as strikes. The probation report also showed that defendant had incurred one other felony conviction and three misdemeanor convictions, as well as numerous violations of probation.
As noted, defendant admitted the priors in a bifurcated proceeding after the jury returned its verdict.
The trial court noted that it had read defendant’s motions requesting reduction of his convictions to misdemeanors and inviting the court to exercise its discretion to strike one prior strike, as well as the People’s opposition to the latter. The court then indicated that, even though the probation report had recommended a three strikes sentence of 25 years to life plus 10 years for defendant’s two prior felony convictions, the court was inclined to strike one of the strikes and impose a total determinate sentence of 14 years -- the middle term on count 1 doubled, plus two five-year enhancements under section 667 for the prior felony convictions.
Defense counsel did not object to anything in the probation report other than its discussion of a dismissed charge, which the trial court stated it would not consider.
After striking one strike, the trial court imposed sentence as follows: “I am going to impose the upper term with respect to Count One. I indicated that I . . . was inclined to impose the middle term of two years. [¶] However, I’m convinced [that] the multiple violations of probation, your prior felony convictions, and your inadequate performance on prior grants of probation merit imposition of the upper term of three years. [¶] And in light of the fact that you have previously admitted the prior felony convictions as alleged in this matter, I’m obligated to double this prison base term of three years. [¶] So the term will be six years, that is, the base term is doubled, that is, the upper term of three is doubled for a term of six years with respect to Count One.” The court stayed sentence on count 2 (§ 654), then imposed five-year enhancements for the admitted prior felony convictions (§ 667, subd. (a)).
Analysis
The People assert first that defendant has forfeited his claim of Cunningham error because he did not raise the issue in the trial court. Defendant contends that he did not forfeit the claim because he was never advised of his right to a jury trial on aggravating factors; in the alternative, he contends that trial counsel’s failure to object to the upper term was ineffective assistance of counsel. We conclude the claim is not waived or forfeited.
The right at issue is the right to a jury trial on aggravating factors. Article I, section 16, of the California Constitution provides, “A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” A defendant’s waiver of jury trial must be expressed in words on the record. (People v. Erust (1994) 8 Cal.4th 441, 445.) There is no such waiver by defendant on this record. Defendant’s right to a jury trial has not been waived or forfeited.
On the merits, however, the claim fails because the trial court imposed the upper term based primarily on defendant’s record of prior convictions, a fact which does not have to be tried to the jury. (Cunningham, supra, 549 U.S.___, ___ [166 L.Ed.2d at p. 873.) Defendant asserts that the court could not use his prior convictions to impose the upper term because the court also used them to impose five-year enhancements under section 667, subdivision (a), and it is impermissible to use prior convictions for both purposes. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) Defendant is mistaken because the two prior felony convictions which he admitted, and which the court used to impose the five-year enhancements, were not his only prior convictions. As we have explained, the probation report showed that defendant had incurred four other convictions. The court could properly rely on those to impose the upper term, without impermissibly making dual use of the priors defendant had admitted.
Defendant also asserts that the other two “aggravating factors” the trial court relied on -- his multiple violations of probation, and his inadequate performance on probation -- really amount to a single factor, and one which must be tried to the jury. We agree that the two “factors” are really one, but find that the failure to try this factor to the jury was necessarily harmless.
The unlawful failure to try an enhancement to a jury, as required by Apprendi and Blakely, may be found to constitute harmless error under Chapman v. California (1967) 386 U.S. 18, at page 24 [17 L.Ed.2d 705]. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 477].) Cunningham should be treated no differently.
Defendant’s prior unsatisfactory performance on probation was detailed in the probation report. Since defense counsel objected to one point in the probation report, he was clearly aware of the report’s contents, but he never claimed that it misstated defendant’s performance on probation. Because defendant’s unsatisfactory performance on probation would be used by the court as a factor to aggravate defendant’s sentence, counsel had every incentive to make such a claim. His failure to do so amounted to a concession that the report was accurate in this respect. Thus, the failure to afford defendant a jury trial on this issue was harmless beyond a reasonable doubt. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., MORRISON, J.