Opinion
B226607 c/w B228194
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO GOMEZ et al., Defendants and Appellants.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Gomez. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Francisca Carmona. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Lance E. Winters and Carl N. Henry, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA077232)
APPEAL from judgments of the Superior Court of Los Angeles County, Richard Romero, Judge. Affirmed as modified and remanded with directions.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant Antonio Gomez.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Francisca Carmona.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Lance E. Winters and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Antonio Gomez and Francisca Carmona were convicted of dissuading witnesses and other offenses. They challenge the judgments on many grounds, including the existence of sentencing errors. We reject these contentions, with the exception of certain sentencing errors as to both appellants that are properly corrected without a remand for resentencing; in addition, we conclude that the abstract of judgment for Carmona contains omissions. Accordingly, we modify the judgments to remedy the sentencing errors, affirm the judgments so modified, and direct the preparation of corrected abstracts of judgment.
RELEVANT PROCEDURAL HISTORY
On July 16, 2010, a second amended information was filed, charging appellants Francisca Carmona and Antonio Gomez in counts 1, 2, 5, and 7 with dissuading Jessica Rodas, Mynor Rodas, Debra Brooks, and Edgar Rodas as witnesses or victims (Pen. Code, § 136.1, subd. (c)(1)); in counts 3 and 4, with making criminal threats against Mynor Rodas and Edgar Rodas (Pen. Code, § 422); and in count 6, with assault on Debra Brooks by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Accompanying all the counts were gang allegations (§ 186.22, subd. (b)); in addition, accompanying count 6 was an allegation that Carmona had inflicted great bodily injury on Brooks. Appellants pleaded not guilty.
All further statutory citations are to the Penal Code, unless otherwise indicated.
On July 20, 2010, a jury found Carmona guilty as charged on all counts, and found the gang and great bodily injury allegations to be true. The jury found Gomez guilty as charged on counts 1 through 4 and count 7, but acquitted him on counts 5 and 6, and found all the gang allegations against him not to be true. In sentencing Carmona, the trial court imposed consecutive terms of 7 years to life on counts 1, 2, 5, and 7, resulting in a term of 28 years to life; punishment on the remaining counts was stayed (§ 654). The trial court sentenced Gomez to a term totaling six years.
FACTS
A. Prosecution Evidence
1. Murder By Oscar Gomez
From approximately 2000 through 2008, Edgar Rodas lived with his family in an apartment in an area of San Pedro claimed by the Rancho San Pedro gang. There were many gang-related crimes in the area, including shootings. According to Los Angeles Police Department (LAPD) Officer Maligi Nua, a gang expert, the Rancho San Pedro gang is a criminal street gang that engages in violent offenses and other illegal activities, including witness intimidation. During the pertinent events, Carmona was a member of the Rancho San Pedro gang, as was Oscar Gomez, the father of Carmona's children. Appellant Antonio Gomez was Oscar's brother.
On October 15, 2006, Edgar's daughter Jessica, then a college student, saw Oscar Gomez kick a man to death in a playground within the apartment complex. Jessica's fifteen-year old sister Amy also witnessed the crime. Following the incident, Jessica named Oscar Gomez as the perpetrator and identified him in a photographic lineup.
Although Amy did not select Oscar Gomez in a photographic lineup, she identified him as the perpetrator of the murder during his March 2010 trial.
On October 20, 2006, LAPD officers executed a search and arrest warrant regarding Oscar Gomez at his residence. They found Antonio Gomez in a closet that also contained a sawed off shotgun, and then discovered Oscar Gomez and Carmona hiding in a crawl space under the closet's floorboards, which had been cut to permit access to the space. Jessica was subpoenaed to appear as a witness at Oscar Gomez's preliminary hearing, which was set for January 28, 2008.
2. Underlying Offenses
At approximately 3:00 p.m. on January 26, 2008, prior to Oscar Gomez's preliminary hearing, Edgar and his 18-year old son Mynor were washing a truck in a parking lot near their apartment. Mynor testified as follows: As he was washing the truck, appellants approached him, and Carmona asked, "Is Jessica your sister?" When he replied affirmatively, Carmona "pretty much made a threat to [Jessica] and to the family." In a serious voice, Carmona made remarks such as, "[I]f she testifies . . . , something bad is gonna happen to her," "[T]ell her not to testify, " or "[W]atch her back." Carmona directed the remark that "something bad is gonna happen" at the entire Rodas family. Carmona also said, "I'm a good person, but I can be bad, too." Edgar then came over and told Mynor to keep washing the truck.
Mynor further testified that after he moved to the rear of the truck, Gomez walked up to him, saw that he wore an "Ultimate Fighting Championship" t-shirt, and said, "Oh, you like fighting." When Mynor replied that he did not fight, Gomez came very close and said, "Oh, I like to fight." Mynor viewed the remark as a threat, and he became frightened. Shortly afterward, Edgar told Mynor to go to the family apartment.
Edgar testified as follows: As he was washing the truck, he overheard a voice refer to Jessica. The voice came from Mynor's location on the other side of the truck. As he approached Mynor, he saw appellants and told Mynor that he would take care of the situation. Carmona told Edgar that she did not want Jessica to testify; that they belonged to the Rancho San Pedro gang, which had many more members; and that they could shoot out Edgar's house and kill his family. Carmona also asserted that she had "all of [Jessica's] information." Gomez stood approximately seven or eight feet away. As Carmona spoke, Gomez made "shushing" gestures by placing his index finger vertically across his mouth. Edgar understood this to mean that he should be quiet. When Gomez made these gestures, he said, "He is my brother." Edgar became very frightened.
According to Edgar, his neighbor, Debra Brooks, overheard Carmona's remarks. When appellants walked away from Edgar, Brooks asked Edgar why he was letting Carmona threaten him. In response, appellants turned and walked over to Brooks. Carmona then punched and kicked Brooks while appellant stood nearby "in an aggressive manner."
Brooks testified as follows: On January 26, 2008, she saw Gomez with Carmona, who was threatening Edgar and Mynor. Brooks heard Carmona "telling [Edgar] about blowing the house up, and . . . threatening about their cars and stuff." At some point, Carmona said that "she didn't want them to testify and they better not show up and testify." She also heard Carmona say, "This is Rancho. This is Rancho, bitch." Gomez said nothing, but held his hand in his right pocket, where he appeared to have a concealed weapon.
Brooks further testified that as Carmona and Gomez left, Brooks asked Edgar, "[S]he threatening you? Why don't you call the police?" Carmona then ran up to Brooks and demanded, "What you say?" When Brooks answered, "I ain't said nothing," Carmona punched Brooks in the head, knocking her to the ground, and repeatedly kicked her, saying, "This is Rancho." Gomez stood nearby, watching. When Brooks asked, "Why are you doing this?," Carmona answered, "Bitch, shut up, shut the fuck up. This is Rancho San Pedro." After Brooks stood up and tried to enter her apartment, Carmona again beat her. As Carmona and Gomez left, Carmona said, "Bitch, you better not call the police because I know where you live."
Edgar and Mynor fled to their apartment, where Edgar reported the incident to his family, including Jessica. Everyone in the family was frightened. Jessica contacted the LAPD, which moved the family from their apartment to a new residence. The family never returned to the apartment complex where Jessica and Amy witnessed the murder. Oscar Gomez was later convicted of the October 15, 2006 murder.
The Rodas family received $17,850 from the police department to pay for their relocation.
B. Defense Evidence
Appellants presented no evidence.
DISCUSSION
Gomez contends the trial court improperly denied his request for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). In addition, appellants contend that their convictions fail for want of sufficient evidence; that the trial court erred in admitting evidence; that the prosecutor engaged in misconduct; that the information was improperly amended during the trial; and that there was sentencing error. As explained below, we reject their contentions, with the exception of (a) Gomez's contention that the sentence imposed on counts 3 and 4 (criminal threats) should have been stayed, and (b) Carmona's contention that her custody credits were improperly calculated. In addition, we conclude that the abstract of judgment regarding Carmona contains errors.
Although Carmona seeks to join in this contention on appeal, she has forfeited her entitlement to do so, as she did not join in Gomez's motion before the trial court. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048 [generally, failure to join in a codefendant's objection or motion works a forfeiture of the issue on appeal].)
Appellants have joined in each other's contentions, to the extent they are applicable to both appellants.
A. Pitchess Motion
Gomez contends the trial court erred in summarily denying his Pitchess motion on the ground that Gomez had failed to show good cause for the discovery he sought. We review this ruling for an abuse of discretion. (People v. Galan (2009) 178 Cal.App.4th 6, 12.)
1. Governing Principles
Generally, the procedure by which a criminal defendant may obtain access to confidential peace officer personnel records through a Pitchess motion is governed by Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. Under these provisions, "on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] . . . If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citations], 'the trial court should then disclose to the defendant "such information [as] is relevant to the subject matter involved in the pending litigation."' [Citations.]" (People v. Gaines (2009) 46 Cal.4th 172, 179.)
The key issue before us is whether Gomez established good cause for his requested discovery. The standards governing this requirement are stated in Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick). Our Supreme Court explained that to show good cause, "defense counsel's declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges." (Warrick, supra, 35 Cal.4th at p. 1024.) "The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses." (Ibid.) In addition, the declaration "must also describe a factual scenario supporting the claimed officer misconduct." In some circumstances, the scenario may consist of a denial of the facts asserted in the police report. (Id. at pp. 1024-1025.) In other circumstances, more is required. (Ibid.) When the trial court receives the police report or other documents in addition to the attorney declaration, "the defendant must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.]" (Id. at p. 1025.) Generally, "a scenario is plausible [when] it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
Under Warrick, a plausible factual scenario must be more than merely possible. In People v. Thompson (2006) 141 Cal.App.4th 1312, 1314 (Thompson), the defendant was charged with the sale of cocaine base. According to the police report, an undercover officer working with a "'buy team'" approached the defendant and bought cocaine with pre-recorded bills. (Id. at pp. 1315, 1317.) The defendant's Pitchess motion sought discovery of citizen complaints regarding fabrication of evidence and falsification of police reports. (Id. at p. 1317.) The attorney declaration supporting the motion asserted that the officers had fabricated the entire transaction. (Id. at p. 1317.)
The appellate court concluded that the defendant had not shown good cause, reasoning that the defendant's scenario explained neither his own conduct nor the officers' behavior. (Thompson, supra, 141 Cal.App.4th at pp. 1318-1319.) The court stated: "[The defendant] is not asserting that officers planted evidence and falsified a police report. He is asserting that, because he was standing at a particular location, 11 police officers conspired to plant narcotics and recorded money in his possession, and to fabricate virtually all the events preceding and following his arrest. . . . [¶] . . . [His] denials 'might or could have occurred' in the sense that virtually anything is possible. Warrick did not redefine the word 'plausible' as synonymous with 'possible,' and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations." (Ibid.)
Moreover, under Warrick, a defendant fails to establish good cause when his factual scenario relies on police officer dishonesty unrelated to the evidence supporting the charges against him. In People v. Hill (2005) 131 Cal.App.4th 1089, 1095-1096, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5, the defendant fled from police officers in his car, obtained a gun, drove back to the officers' location, and fired at them. He was arrested on the basis of statements from two passengers in the defendant's car, who identified him as the shooter. (Id. at pp. 1097, 1100.) The defendant's Pitchess motion sought citizen complaints attributing dishonesty to the officers who were involved in the shooting, asserting that the police report falsely stated that the defendant was the shooter. (Id. at pp. 1096-1097.) The appellate court held that the defendant had not shown good cause for discovery because he "was identified and implicated by civilian witnesses rather than [the police officers]." (Id. at p. 1096.)
2. Analysis
We conclude the trial court properly denied Gomez's Pitchess motion without an in camera hearing, as the motion failed to establish good cause for the requested discovery. As explained below, the supporting declaration described purported acts of police officer dishonesty unrelated to the evidence supporting the offenses charged against Gomez.
While proceeding in propria persona, Gomez filed a Pitchess motion, seeking discovery regarding LAPD Detective David Cortez, who investigated the murder involving Oscar Gomez and also arrested Gomez for the offenses underlying this appeal, as well as other LAPD officers who participated in the arrest and the investigation of the offenses, including LAPD Officers Fernando Rivas, Adriana Bravo, and Maligi Nua. Gomez's declaration asserted that the January 30, 2008 police report by Cortez and Rivas regarding the underlying offenses "failed to explain" their dealings with Gomez in connection with the murder involving Oscar Gomez. According to Gomez, he was "falsely charged with accessory to [the murder]." During an interview, Rivas offered Gomez "a chance to make money," but he turned it down. Shortly afterward, Gomez accepted a plea bargain agreement and was released. Nonetheless, Rivas twice came to Gomez's residence in an attempt to contact him.
Gomez's declaration also asserted that after he was arrested on the underlying charges, Officers Nua and Bravo engaged in perjury in May 2008. According to Gomez, Nua falsely testified that Gomez's probation related to a burglary charge, not the charge of being an accessory to murder. Furthermore, Gomez maintained that Bravo falsely testified that the witnesses to the murder involving Oscar Gomez were the victim's relatives.
These assertions fail to show good cause for the requested discovery, as they set forth no plausible factual scenario supporting a defense to the charges against Gomez. (Warrick, supra, 35 Cal.4th at p. 1026.) Although Gomez attributed misstatements and other misconduct to the officers, the primary evidence against Gomez came from the Rodases and Brooks, not the officers. Gomez's assertions neither deny the existence of the offenses against the Rodases and Brooks nor discredit the victims' identifications of Gomez as a perpetrator of the offenses. There was no error.
We recognize that at the hearing on the Pitchess motion, Gomez suggested that Cortez and Rivas may have falsified the identifications provided by the Rodases. As he offered no plausible account of how this occurred, the trial court properly concluded that the suggestion did not provide good cause for the discovery. (See Thompson, supra, 141 Cal.App.4th at pp. 1318-1319.)
B. Substantial Evidence
Appellants contend that their convictions fail for want of substantial evidence. For the reasons explained below, we disagree.
1. Standard of Review
Our inquiry into appellants' contentions follow established principles. "In determining whether the evidence is sufficient to support a conviction . . . , 'the relevant question is 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.' [Citations.] Under this standard, 'an appellate court in a criminal case . . . does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Rather, the reviewing court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value --such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation]." (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
2. Dissuading Mynor and Edgar as Victims or Witnesses (Counts 2 and 7)
Appellants contend there is insufficient evidence to support their convictions under section 136.1, subdivision (c)(1), for dissuading Mynor and Edgar as victims or witnesses (counts 2 and 7). They are mistaken.
Appellants do not challenge their section 136.1 conviction regarding Jessica (count 1), and Carmona does not challenge her section 136.1 conviction regarding Brooks (count 5).
Section 136.1 establishes two forms of the "dissuading" offense. Under subdivision (a), an offense is committed when the defendant prevents or dissuades a witness for testifying, or attempts to do so. (People v. Hallock (1989) 208 Cal.App.3d 595, 606; People v. Foster (2007) 155 Cal.App.4th 331, 335 (Foster).) Furthermore, under subdivision (b), an offense is committed when the defendant attempts to prevent or dissuade a victim or witness from reporting a crime. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1319-1320; People v. Ortiz (2002) 101 Cal.App.4th 410, 415-416.) These offenses are felonies when the defendant's acts in contravention of subdivisions (a) or (b) are "accompanied by force or by an express or implied threat of force or violence[] upon a witness or victim or any third person . . . ." (§ 136.1, subd. (c)(1).)
Criminal dissuasion may be inferred from the defendant's words or conduct; the defendant need not say, "Don't testify," or make an equivalent remark. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346.) Furthermore, the offenses may be committed regardless of whether the threat of violence is successful. Subdivision (d) of section 136.1 states: "Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section." (Italics added.) As explained in Foster, in view of this provision, section 136.1 "neither restricts the means a defendant selects to commit the offense, nor does it require that [the] defendant personally deliver the message to the witness. A threat need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." (Foster, supra, 155 Cal.App.4th at p. 335.)
Here, the prosecution asserted that appellants had attempted to dissuade Edgar and Mynor from reporting appellants' criminal threats related to Jessica's pending testimony at Oscar Gomez's preliminary hearing. As explained below, we conclude there is ample evidence to support appellants' convictions under section 136.1.
We begin with appellants' offenses against Edgar. Regarding Carmona, Edgar testified that after she threatened his family with violence if Jessica testified, she and Gomez began to leave. However, when Carmona heard Brooks ask Edgar why he was letting Carmona threaten him, Carmona attacked Brooks. Similarly, Brooks testified that when she asked Edgar, "Why don't you call the police?," Carmona beat her and then said, "Bitch, you better not call the police because I know where you live." As Carmona assaulted Brooks in Edgar's view, the jury reasonably concluded that Carmona intended her conduct and words to convey to Edgar that violence awaited him too if he reported the criminal threats regarding Jessica.
Regarding Gomez, Edgar testified that when Carmona expressed the threats to him, Gomez repeatedly made a "shushing" gesture and said that Oscar Gomez was his brother. Gomez looked at Edgar in making the gesture; as Gomez and Carmona walked away from Edgar, Gomez again directed the gesture at Edgar. Edgar understood Gomez to be telling him to be quiet. In view of this evidence, the jury reasonably concluded that the gesture was intended to convey to Edgar that he should remain silent regarding Carmona's threats.
Because Gomez made the gesture to Edgar after Carmona finished speaking to Edgar, we reject Gomez's suggestion that the gesture meant only that Edgar should listen quietly to Carmona's threats.
There is also sufficient evidence to support appellants' conviction for the offense against Mynor, notwithstanding a conflict in the evidence whether Mynor saw Carmona's attack on Brooks. Although Brooks testified that both Edgar and Mynor watched the attack, Mynor testified that he did not see it. However, if the jury credited Brooks's testimony, the jury reasonably inferred that Carmona's attack directly conveyed to Mynor that he should remain silent regarding Carmona's threats against him. Alternately, if the jury credited Mynor's testimony, it reasonably concluded that Carmona, in assaulting Brooks, intended to convey this message to Mynor through Edgar. According to Mynor, shortly after he went into the apartment, Edgar reported the attack to him. Mynor described his reaction to Edgar's report as follows: "[S]he hit [Brooks] for saying . . . not to take that from her. . . . Imagine what she'll do to us if we actually do go testify." (Italics added.) Upon this evidence, the jury reasonably found that Carmona intended to intimidate Mynor from reporting the incident, as it supports the inference that Carmona knew that Mynor would learn about the attack -- either directly or indirectly through Edgar -- and thereby come to understand her message, namely, that he should remain silent regarding the threats related to Jessica's testimony.
The record similarly supports Gomez's conviction for the offense regarding Mynor, even though Mynor did not see Gomez's "shushing" gestures or hear his remarks to Edgar. Because Mynor was nearby while Carmona and Gomez addressed Edgar, the evidence raises the reasonable inference that Gomez believed that Mynor would see his gestures and hear his remarks. In addition, Mynor testified that Gomez directly confronted him in a threatening manner. The evidence, viewed collectively, thus shows that Gomez intended to intimidate Mynor from reporting the threats regarding Jessica. In sum, there is sufficient evidence to support appellants' convictions for dissuading Edgar and Mynor as witnesses or victims (counts 2 and 7).
3. Criminal Threats Against Mynor and Edgar (Counts 3 and 4)
Appellants contend their convictions for making criminal threats against Mynor (count 3) and Edgar (count 4) fail for want of substantial evidence because the threats were merely conditional. They argue that the threatened harm "would only come to pass if [Jessica] testified," as they intended only to dissuade Jessica from testifying. According to appellants, their "conditional" threats do not satisfy the requirements for a conviction under section 422. We disagree.
To prove the offense of making a criminal threat, as defined in section 422, the prosecution is obliged to establish five elements: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat . . . was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Section 422 provides in pertinent part that a criminal threat is made by a person "who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, [and] which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety."
The focus of our inquiry is on element (3). The terms "unequivocal," "unconditional," "immediate," and "specific," as used in the statement of the element, do not impose unqualified requirements on threats actionable under section 422. (People v. Bolin (1998) 18 Cal.4th 297, 339-340 (Bolin).) As our Supreme Court has explained, "'unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.'" (Ibid., quoting People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157.)
Under these principles, a threat that is conditional in form may be subject to prosecution under section 422. In Bolin, the defendant sent his victim a letter stating, "'If you ever touch my daughter again, I'll have you permanently removed from the face of this earth.'" (Bolin, supra, 18 Cal.4th at p. 336, fn. 11.) The Supreme Court concluded that threats of this type fall within the scope of section 442, reasoning that "'[a] seemingly conditional threat contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution.'" (Id. at p. 340, quoting People v. Stanfield, supra, 32 Cal.App.4th at p. 340.) The court observed: "'Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so he won't have to carry out the threats.'" (Bolin, supra, at p. 339, quoting U.S. v. Schneider (7th Cir. 1990) 910 F.2d 1569, 1570.)
Here, there is ample evidence to support the jury's determinations regarding element (3) under counts 3 and 4. Mynor and Edgar testified that Carmona threatened violence against the entire Rodas family if Jessica were to testify, including "shoot[ing] out [Edgar's] house and kill[ing his] family." This evidence, coupled with Gomez's bullying of Mynor and Carmona's assault on Brooks, establishes that the threats conveyed "a gravity of purpose and an immediate prospect of execution," for purposes of element (3) (§ 422). In sum, there is sufficient evidence to support appellants' convictions for making criminal threats to Mynor and Edgar.
C. Evidentiary Rulings
Appellants contend the trial court erred in admitting testimony on several matters. Prior to trial, Gomez filed a motion in limine, seeking to exclude or limit testimony concerning (1) appellants' presence when Oscar Gomez was arrested, (2) Oscar Gomez's crime and conviction, (3) Edgar's statements to Jessica and Amy regarding appellants' threats, and (4) the Rodas family's change of residence following the threats. Carmona joined in the motion. The trial court denied the motion and admitted the pertinent testimony at trial. As explained below, we see no reversible error.
1. Oscar Gomez's Arrest
Appellants contend the trial court erred in permitting testimony that they were hiding near Oscar Gomez when he was arrested. According to the testimony, police officers found Gomez and a shotgun in a closet located above a crawl space concealing Oscar Gomez and Carmona. Before the trial court, appellants argued this testimony was inadmissible under Evidence Code sections 1101, subdivision (a), and 352. In rejecting this contention, the trial court concluded the testimony was admissible under Evidence Code section 1101, subdivision (b), to show appellants' intent in intimidating the Rodases and Brooks, and that its probative value exceeded its potential for prejudice. We agree.
"Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant 'when offered to prove his or her conduct on a specified occasion.' Subdivision (b) of the statute, however, provides that such evidence is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .).' . . . Moreover, to be admissible, such evidence '"'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.'"'" (People v. Cole (2004) 33 Cal.4th 1158, 1194.)
Under Evidence Code section 1101, subdivision (b), a defendant's prior misconduct may be admissible to show intent even though it does not closely resemble the offenses charged against the defendant. Our Supreme Court has explained: "To satisfy this theory of relevance, charged and uncharged crimes need only be 'sufficiently similar to support the inference that the defendant "' probably harbor[ed] the same intent in each instance.' [Citations.]"'" (People v. Demetrulias (2006) 39 Cal.4th 1, 15, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The crucial inquiry is whether "there is a direct relationship" between the prior misconduct and an element of the charged offense. (People v. Daniels (1991) 52 Cal.3d 815, 857.) Thus, evidence of prior misconduct by the defendant is admissible to show his intent in killing a person who reported the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1120.)
We conclude that the testimony regarding Oscar Gomez's arrest was properly admitted under Evidence Code section 1101, subdivision (b), and Evidence Code section 352. Not only did the evidence show that appellants were closely allied with Oscar Gomez, but the circumstances of Oscar's arrest demonstrated that both appellants were willing to assist him in evading arrest and prosecution for the murder Jessica witnessed and about which she was prepared to testify. This was, as the trial court observed, "strongly probative" of appellants' intent in intimidating the members of the Rodas family and Brooks. Furthermore, as no evidence was introduced suggesting that appellants were implicated or arrested in connection with the murder involving Oscar Gomez, the testimony's potential for prejudice did not contravene the limits established in Evidence Code section 352. (People v. Yu (1983) 143 Cal.App.3d 358, 377 ["The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues."]; accord, People v. Karis (1988) 46 Cal.3d 612, 638.)
2. Oscar Gomez's Crime and Conviction
Appellants contend the trial court erred in declining to "sanitize" Oscar Gomez's crime and conviction, that is, limit the prosecution to showing only that there was a felony case pending against Oscar Gomez when the underlying incident occurred. In ruling on the motion in limine, the trial court concluded that the facts regarding Oscar Gomez's crime were material, as the jury would be unable to comprehend the offenses alleged against appellants if it was ignorant of these facts. We discern no error in this ruling. The nature of Oscar Gomez's crime was essential to the jury's understanding of what Jessica and Amy saw as witnesses; moreover, the facts regarding his crime were relevant to establishing why appellants' threats placed them in a state of fear. Furthermore, as no evidence implicated appellants directly in Oscar Gomez's crime, the evidence's potential for prejudice was limited, for purposes of Evidence Code section 352.
3. Edgar's Description of Appellants' Threats
Appellants contend the trial court erred in permitting testimony regarding Edgar's remarks to Jessica regarding appellants' threats. They maintain that the remarks constituted inadmissible hearsay. They are mistaken.
During the hearing on the motion in limine, appellants argued that Edgar's description of appellants' threats to Jessica was not admissible under the "spontaneous statement" exception to the hearsay rule, as both Jessica and Amy had testified at the preliminary hearing that Edgar appeared to be calm when he related the threats. In denying the motion, the trial court noted that Edgar's remarks to Jessica were relevant to his state of fear, for purposes of the charge of criminal threats regarding Edgar (count 4), and it otherwise found that the remarks were more probative than prejudicial (Evidence Code § 352). At trial, Edgar testified that he related appellants' statements to Jessica, but did not describe what he said to her. Later, over hearsay objections, Jessica described Edgar's remarks. In overruling the objections, the trial court informed the jury that the testimony was admitted "not for the truth . . . , but for the effect on [Jessica]."
We agree with the trial court that Jessica's testimony regarding Edgar's remarks did not involve hearsay. As Witkin has explained, the rule against hearsay "excludes hearsay statements only when they are offered for the same purpose as testimony of a witness on the stand and therefore depend for probative value on the credibility of the declarant. [Citations.] [¶] The importance of this qualification is that out-of-court statements not offered to prove the truth of the matter stated are not regarded as hearsay. No special exception to the hearsay rule need be invoked for their admission; they are not within the hearsay rule at all. [Citations.]" (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 5, pp. 683-684, italics omitted.) The rule thus does not bar evidence of out-of-court statements admitted to establish facts other than the truth of the matter asserted, including the state of mind of the declarant and the person who heard or received the statement. (Id. at §§ 36, 40, pp. 718-719, 722-723.)
Under these principles, the hearsay rule does not bar a witness from testifying regarding the content of threats from the defendant that were related to the witness by a third party, provided that the testimony is admitted for a nonhearsay purpose. In People v. Burgener (2003) 29 Cal.4th 833, 868, a witness was permitted to testify over a hearsay objection that the defendant communicated his threats against her through a third party. Our Supreme Court concluded that the testimony was properly admitted, as the witness's testimony was admitted for a nonhearsay purpose, namely, to explain changes in her testimony from earlier trials, and the jury was so instructed. (Ibid.)
Here, as the trial court noted at the hearing on the motion in limine, Jessica's testimony regarding Edgar's remarks was admissible for a nonhearsay purpose, namely, to establish that he was in a state of fear, for purposes of the charge of criminal threats regarding him (count 4). To establish this offense, the prosecution was obliged to show that appellants' threat actually caused Edgar "'to be in sustained fear for his or her own safety or for his or her immediate family's safety.'" (People v. Toledo, supra, 26 Cal.4th at pp. 227-228, italics added.) The fact that Edgar related appellants' threats to Jessica showed that his fear motivated him to take protective action regarding Jessica.
The trial court nonetheless erred in instructing the jury that Edgar's remark was admitted to establish Jessica's state of mind. The only offense charged against appellants that identified Jessica as a victim was dissuading a witness (count 1). For the reasons stated above (see pt. B.2, ante), Jessica's state of mind was not an element of this offense, as its commission did not require her awareness of appellants' threats. Accordingly, the trial court incorrectly directed the jury's attention to Jessica's state of mind, rather than Edgar's.
This error, however, was not prejudicial. As explained below (see pt. C.4., post), the trial court properly admitted evidence that appellants' threats aroused fear in Edgar sufficient to motivate him to move his family from their residence. Because this evidence necessarily also brought Jessica's own fears to the jury's attention, the defect in the admonition could not have affected the trial's outcome. Accordingly, the defect was harmless even under the stringent "beyond a reasonable doubt" standard for federal constitutional error articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
4. The Rodas Family's Change of Residence
Appellants contend the trial court erred in admitting evidence that the Rodases permanently changed their residence in response to appellants' intimidation. We disagree. The evidence was relevant to show that Edgar and Mynor experienced "sustained fear" for the safety of their family following appellants' threats (§ 422), as it demonstrated that Edgar's and Mynor's fears were powerful enough to motivate Edgar to permanently move his family from their long-established residence. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.) Furthermore, appellants were permitted to cross-examine the Rodases regarding their receipt of witness relocation funds, which materially diminished the potential for undue prejudice (Evid. Code, § 352). In sum, the evidence was properly admitted.
D. Prosecutorial Misconduct
Appellants contend the prosecutor engaged in several instances of misconduct during trial. As explained below, we discern no misconduct supporting a reversal of the judgments.
Generally, "'"[a] prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citation.] '"Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'"' [Citation.]" (People v. Prieto (2003) 30 Cal.4th 226, 260.) Absent an objection and request for an admonition to the jury, we review a contention of prosecutorial misconduct solely when "'an admonition would not have cured the harm caused by the misconduct.'" (People v. Earp (1999) 20 Cal.4th 826, 858.) Prosecutorial misconduct is examined for prejudice under the test in People v. Watson (1956) 46 Cal.2d 818, 836, unless it requires assessment under the more stringent beyond-a-reasonable-doubt test for federal constitutional error found in Chapman. (People v. Herring (1993) 20 Cal.App.4th 1066, 1077.)
1. Inquiry Regarding Gomez's Facial Expression
Gomez contends the prosecutor engaged in misconduct by asking a witness to comment on Gomez's expression. Generally, in criminal trials, "prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's right not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character. [Citations.]" (People v. Heishman (1988) 45 Cal.3d 147, 197.)
When the prosecutor examined Mynor regarding his confrontation with Gomez, the prosecutor requested clarification concerning Gomez's expression when he said, "Do you fight?. . . I fight." The prosecutor asked: ". . . Was [Gomez's] expression on his face -- was it a happy, friendly expression, or was it kind of like a cold, straight-faced expression like he has right now in court?" Gomez's counsel objected to the question, asserting that it "mischaracterize[ed] the expression on [Gomez's] face." In sustaining the objection, the trial court admonished the jury: "The jurors are not to consider the demeanor of a defendant while in court. That is not evidence. The way [appellants] look now is not evidence. Facial expressions . . . are not evidence."
We note initially that Gomez did not object to the prosecutor's comment on the constitutional grounds now raised on appeal. Rather, defense counsel claimed the prosecutor's description of Gomez's in-court expression was inaccurate. Assuming -- without deciding -- that the objection preserved appellant's contention, we discern no error implicating Gomez's rights under state law or the federal Constitution. While the prosecutor should not have drawn the jury's attention to Gomez's in-court demeanor, the question did not implicate appellant's credibility, right to testify or character. More important, it was barely asked before the court sustained an objection and promptly admonished the jury "not to consider the demeanor of a defendant while in court," reminding the jurors that "[f]acial expressions . . . are not evidence." In light of the brevity of the reference and the trial court's prompt admonition, we find no prejudicial misconduct. (See People v. Boyette (2002) 29 Cal.4th 381, 434-435 [prosecutor's ambiguous reference to defendant's courtroom demeanor was not prejudicial due to its brevity, notwithstanding absence of admonition regarding reference].)
2. Testimony from Officer Bravo
Appellants contend the prosecutor improperly elicited expert opinion regarding gangs from Officer Bravo after promising she would not testify as a gang expert. Generally, a police officer not testifying as an expert may properly offer opinions that are "'[r]ationally based on the [officer's] perception'" and "'[h]elpful to a clear understanding of [the officer's] testimony.'" (People v. Maglaya (2003) 112 Cal.App.4th 1604, 1608, quoting People v. Farnam (2002) 28 Cal.4th 107, 153.) We see no prejudicial misconduct.
During the prosecutor's direct examination of Bravo, which primarily concerned Oscar Gomez's arrest, the prosecutor requested leave to ask Bravo, based on her personal experience as an officer, whether the Rancho San Pedro gang claimed the area containing the Rodases' apartment complex, and whether Carmona belonged to the Rancho San Pedro gang. Appellants' counsel objected that the prosecutor had designated only Officer Nua as a gang expert. According to counsel, their primary concern was that Bravo might opine that appellants' offenses were committed for the benefit of a gang.
In permitting Bravo to testify on the specified matters, the trial court stated: "[Bravo] is not going to give opinions. She is not the expert." Bravo testified that while working for a gang enforcement detail, she had patrolled the pertinent area, which she identified as Rancho San Pedro gang territory. She also testified that she had personally encountered Carmona, who was a member of the Rancho San Pedro gang with the moniker "Panchita."
We see nothing improper in Officer Bravo's testimony, as it relied only on her personal perceptions. However, even if there were some error in the testimony, the error would be harmless even under the stringent Chapman test. Officer Nua, the prosecution's designated gang expert, provided identical testimony. In view of the brevity and redundancy of Bravo's testimony, there is no reasonable possibility the trial's outcome would have been different had she not testified.
3. Testimony Regarding Broken Window
Appellants contend the prosecutor improperly elicited prejudicial testimony on an unrelated incident. We disagree. "[I]t is misconduct to elicit or attempt to elicit inadmissible evidence in violation of a court ruling." (People v. Silva (2001) 25 Cal.4th 345, 373.) However, no misconduct occurs when the testimony that contravenes a ruling or order is not responsive to the prosecutor's question. (Ibid.)
During pre-trial proceedings, the prosecutor told the trial court and defense counsel that he would not elicit testimony regarding a broken window at the Rodases' apartment complex shortly after the murder involving Oscar Gomez. Later, during the direct examination of Detective Cortez, the prosecutor asked whether he had obtained witness statements from the Rodases' neighbors regarding the murder. When Cortez answered in the negative, the prosecutor inquired, "How was that?" Cortez began to answer, "One of the neighbors I was told who witnessed it had a -- ," but was interrupted by a hearsay objection. After the objection was overruled, Cortez finished his answer: "-- had a broken window as if something was thrown in it. I was told that neighbor witnessed the homicide." Following a defense objection based on the prosecutor's pre-trial promise, the trial court admonished that jury as follows: "There was some testimony about a broken window. Erase it from your notes if you took any notes about that. You're not to consider that whatsoever, [it] just doesn't exist so far as this case is concerned."
We see no misconduct, as the prosecutor's question did not seek a reference to the broken window. Moreover, the impact, if any, of Detective Cortez's testimony was negligible, in view of the trial court's admonition. In sum, there was no prejudicial prosecutorial misconduct.
E. Amendment to Information
Appellants contend the trial court erred in permitting the information to be amended during the trial to include count 7, which alleged that appellants had dissuaded Edgar as a witness. The amendment occurred near the end of the prosecution's case in chief, after Edgar had testified. As explained below, we reject appellant's contention.
Generally, the purpose of an accusatory pleading is "'to provide the accused with reasonable notice of the charges.'" (People v. Sandoval (2006) 140 Cal.App.4th 111, 132, quoting People v. Ruiloba (2005) 131 Cal.App.4th 674, 689-690.) Nonetheless, the Penal Code permits accusatory pleadings to be amended at any stage of the proceedings "for any defect or insufficiency" (§ 1009), and bars reversal of a criminal judgment "by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits" (§ 960). The information may be amended after the conclusion of the trial, prior to submission of the case to the jury. (People v. Witt (1975) 53 Cal.App.3d 154, 164-166, disapproved on another ground in People v. Posey (2004) 32 Cal.4th 193, 205, fn. 5; People v. Walker (1947) 82 Cal.App.2d 196, 198-199.)
As our Supreme Court has explained, the statutory scheme permits the amendment of an information to assert a new offense: "An information is deficient . . . so as to permit of its amendment, when it fails to charge one or more of the offenses shown by the evidence at the preliminary examination. [Citation.] [Section 1009] forbids, however, an amendment which charges 'an offense not shown by the evidence taken at the preliminary examination.'. . . [¶] It is established that the provision of . . . section [1009] allowing an amendment of an information so as to add an offense shown by the evidence at the preliminary examination[] does not violate a defendant's constitutional rights." (People v. Tallman (1945) 27 Cal.2d 209, 213.)
Appellants do not dispute that the charge of dissuading Edgar as a witness was supported by the preliminary hearing evidence, which materially resembled the evidence at trial. They assert only that the mid-trial amendment to the information violated certain rights accorded them under the United States Constitution, namely, their right to due process under the Fourteenth Amendment and their right to cross-examine Edgar under the Sixth Amendment. We disagree.
To begin, the inclusion of new charges in the information does not violate a defendant's due process rights when, as here, the charges are properly shown by the preliminary hearing evidence. (People v. Brown (1973) 35 Cal.App.3d 317, 322-323.) Furthermore, amendments to an information contravene a defendant's right to cross-examine a witness only when "he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall), quoting Davis v. Alaska (1974) 415 U.S. 308, 318.) Thus, no violation of the Sixth Amendment is established unless the defendant demonstrates that the excluded cross-examination would have produced "a significantly different impression of [the witnesses'] credibility." (Van Arsdall, supra, 475 U.S. at p. 680.) No such showing can be made here. As the charge of dissuading Mynor as a victim or witness relied in part on Edgar's testimony (see pt. B.2., ante), both appellants understood that Edgar's testimony was crucial to the prosecution's case concerning what they had communicated through their words and conduct. Gomez's counsel thus examined Edgar closely concerning his understanding of Gomez's statements and gestures, viewed in the context of Carmona's threats and conduct. Although Carmona's counsel engaged in a less thorough examination regarding Edgar's understanding of her threats, nothing in the record suggests that Edgar did not regard Carmona as threatening violence to him if he resisted her efforts at intimidation. On the contrary, during the prosecutor's direct examination, Edgar testified that he became "even more scared" when Carmona attacked Brooks for urging him to reject her threats, and fled to his apartment. We therefore see no impairment of appellants' federal constitutional rights. In sum, the trial court did not err in permitting the amendment of the information.
F. Sentencing
Appellants contend the trial court erred in imposing their sentences. Regarding Carmona, the trial court imposed consecutive terms of seven years to life on each of her four convictions for dissuading a witness or victims (counts 1, 2, 5, 7) under section 186.22, subdivision (b)(4)(C), resulting in a total sentence of 28 years to life; punishment for her other convictions (counts 3,4, 6) was imposed and stayed under section 654.
Regarding Gomez, the trial court imposed a term totaling six years on his three convictions for dissuading a witness or victim, based on the high term of four years on count 1, plus one year (one-third of the middle term) on each of counts 2 and 7.) The trial court also imposed concurrent terms of three years on each of his convictions for making criminal threats (counts 3 and 4).
1. Carmona's Contentions
Carmona contends the trial court erred in (1) imposing a term of seven years to life on each of her convictions for dissuading a witness or victim, (2) ordering these terms to run consecutively, and (3) denying her custody credits.
a. Seven-Years-To-Life Terms
Carmona contends that only one of her convictions for dissuading a witness or victim (counts 1, 2, 5, 7) is subject to a term of seven years to life under section 186.22, subdivision (b)(4)(C), which is an element of the complex statutory scheme governing punishment for gang-related crimes. (People v. Jones (2009) 47 Cal.4th 566, 570-571.) Under subdivision (b)(4)(C) of this provision, anyone who commits a 'dissuading' offense under section 136.1 "shall . . . be sentenced to an indeterminate term of life imprisonment with a minimum term of . . . [¶] . . . [¶] . . . seven years . . . ." Carmona maintains that under the circumstances of this case, section 654 permits the imposition of a "gang enhancement" on only one "dissuading" offense. She is mistaken.
Subdivision (b)(4) of section 186.22 provides in pertinent part: "Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] . . . [¶] (C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1."
Carmona's contention fails, as its central assumption is false. As our Supreme Court has explained, subdivision (b)(4)(C) of section 186.22 is not a gang enhancement, but a penalty provision for certain gang-related crimes that "'sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.'" (People v. Jones, supra, 47 Cal.4th at p. 576, italics added, quoting People v. Jefferson (1999) 21 Cal.4th 86, 101.) Such a provision "'is not a sentence enhancement because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang. Neither is it a substantive offense because it does not define or set forth elements of a new crime.'" (People v. Jones, supra, at p. 576 quoting Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899.)
Carmona's contention also fails, insofar as she suggests that section 654 bars the application of subdivision (b)(4)(C) of section 186.22 -- viewed as a penalty provision -- to more than one of her "dissuading" convictions. We find guidance on this issue from People v. Oates (2004) 32 Cal.4th 1048 (Oates). There, the defendant fired a gun at several people socializing in front of a house, injuring one of them. (Id. at p. 1053.) The jury found the defendant guilty of five counts of attempted murder, and also found true gun use allegations under subdivision 12022.53, subdivision (d), which imposes a 25-years-to-life enhancement when the defendant's personal use of a gun causes great bodily injury "to any person other than an accomplice." (Ibid.) In the defendant's subsequent appeal, the Court of Appeal held that section 654 barred the imposition of such enhancements on two separate counts of attempted murder because the enhancements were based on injuries to the same person.
Our Supreme Court reversed this determination. (Oates, supra, 32 Cal.4th at p. 1055). In view of the mandatory language in section 12022.53, the court reasoned that the statute itself required the imposition of multiple enhancements. (Oates, supra, at pp. 1055-1062.) Furthermore, the court determined that section 654 did not bar such enhancements, due to the application of the so-called "multiple victims" exception to section 654. (Oates, at pp. 1062-1069.)
We reach the same conclusion here, albeit relying on a different exception to the application of section 654. To begin, the penalty provision in section 186.22, subdivision (b)(4)(C), mandates the imposition of the pertinent sentence on each conviction for an enumerated penalty, as it states that "[a]nypersonwho is convicted of a felony enumerated in this paragraph . . . shall, upon conviction of that felony, be sentenced" to the penalty. (Italics added.) Furthermore, under the circumstances present here, Carmona's "dissuading" offenses are exempt from the bar on multiple punishment under section 654, as she had a different goal or objective in committing each offense.
In so concluding, we do not address or resolve whether "dissuading" offenses under section 136.1 are subject to the "multiple victims" exception to section 654.
Under section 654, multiple punishment is proper if the defendant pursues suitably independent criminal objectives. (People v. Williams (1992) 9 Cal.App.4th 1465, 1473-1474.) "'"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one."' (People v. Latimer (1993) 5 Cal.4th 1203, 1208, italics omitted.) However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations]" (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.) The trial court's determinations regarding the defendant's goals under section 654 are reviewed for the existence of substantial evidence. (People v. Green, supra, at p. 1085.)
Under these principles, a defendant may be properly subject to multiple punishment when, in the course of committing an underlying crime, the perpetrator attempts to dissuade the victim from reporting the crime. In People v. Nichols (1994) 29 Cal.App.4th 1651, 1654, the defendant hijacked a freight truck and kidnapped its driver for two hours. Before releasing the driver, the defendant threatened to kill him if he reported the crime. (Ibid.) The appellate court concluded the defendant was properly punished for kidnapping and dissuading a victim or witness (§ 136.1, subd. (c)(1); People v. Nichols, supra, at pp. 1656-1658).
Here, the record shows that Carmona necessarily had different goals in dissuading Jessica, Mynor, Edgar, and Brooks: in each case, she intended to intimidate the victim from testifying to or reporting a different and independent crime. Regarding Jessica, Carmona tried dissuade her from testifying as a witness regarding the murder involving Oscar Gomez, which Mynor and Edgar had not seen. Regarding Mynor and Edgar, Carmona sought to suppress her criminal threats to each individual, which constituted discrete and independent crimes. On this matter, the trial evidence showed that appellants first made criminal threats to Mynor, which Edgar did not clearly overhear; they then separately made criminal threats to Edgar. Finally, regarding Brooks, Carmona sought to deter her from reporting Carmona's attack on her, which occurred after Carmona had threatened Mynor and Edgar and had begun to leave with Gomez. Carmona was thus properly subject to separate punishment for each "dissuading" offense. Accordingly, the trial court properly imposed a term of seven years to life on each of Carmona's convictions for dissuading a victim or witness.
b. Consecutive Sentences
Carmona also contends the trial court erred in imposing consecutive terms on her convictions for dissuading a victim or witness. The crux of her contention is that the trial court believed it lacked the discretion to impose concurrent terms. As explained below, we reject this contention.
Respondent argues that Carmona has forfeited her contention by failing to raise it before the trial court. We disagree. Generally, the absence of a timely objection works a forfeiture when the trial court erred in its discretionary choices. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) However, this rule is inapplicable, when, as here, the trial court pronounces sentence without providing the defendant an opportunity to object before sentence is imposed. (People v. Gonzalez (2003) 31 Cal.4th 745, 755.)
Generally, "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.] [¶] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] '"[A] trial court is presumed to have been aware of and followed the applicable law." [Citations.]' [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)
At Carmona's sentencing hearing, the prosecutor contended that the trial court should impose a sentence of seven years to life on each of her four convictions for dissuading a witness or victims, resulting in a total sentence of 28 years to life. In response, Carmona's counsel argued that although the jury had found the gang allegations to be true, the evidence at trial showed that she wanted to help "her husband," Oscar Gomez, rather than aid her gang. He ended with the following request "I would ask the court, if it could, to stay the gang allegations and sentence her to the minimum." (Italics added.)
In response, the trial court stated: "In this matter, the court has little, if any, discretion in sentencing. . . . Carmona's motive was a personal one, but the means she used brought her into the scope of the gang enhancements and there is a legal basis for imposing them. . . . And [defense counsel's] argument was not accepted by the jury . . . , and it's not a basis for me to change the sentence that otherwise is required by law." The court then moved on to impose sentence.
Pointing to the trial court's remark that it had "little, if any, discretion in sentencing," Carmona maintains that the court misapprehended its discretion to impose concurrent sentences under section 669. We disagree. Nothing in section 186.22 suggests the existence of a limitation on the trial court's discretion to impose concurrent sentences under the penalty provision in subdivision (b)(4)(C). Viewed in context, the trial court's phrase "little, if any, discretion," appears to convey only that its discretion was highly confined with respect to the imposition of the gang-related "enhancement" under this penalty provision on each "dissuading" offense. The remark directly answered defense counsel's request that the court stay the gang allegations, "if it could." On this matter, the trial court correctly responded that the gang "enhancements" were mandatory (see pt. F.1.a., ante). However, in imposing sentence, the trial court said nothing suggesting that the statutory scheme governing the punishment for gang-related crimes also removed its discretion to impose concurrent sentences; moreover, its decision to impose concurrent sentences is adequately supported by the existence of multiple victims (People v. Leon (2010) 181 Cal.App.4th 452, 468). We therefore find no basis to remand the matter for an exercise of discretion in connection with the imposition of consecutive terms.
Section 669 provides that "[w]hen [the defendant] is convicted of two or more crimes," the trial court is to "direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively."
Carmona's reliance on People v. Meloney (2003) 30 Cal.4th 1145 is misplaced. There, the trial court incorrectly stated that it had "no discretion" to make a discretionary order, and the record otherwise clearly showed the court did not believe it had the authority to make the order. (Id. at p. 1165, italics omitted.) That is not the case here.
c. Conduct Credits
Carmona contends the trial court erred in denying her conduct credits. Respondent agrees Carmona is entitled to conduct credits based on 965 days in actual custody, subject to the limits imposed in section 2933.1, which provides that "any person who is convicted of a felony offense listed in subdivision (c) of [s]ection 667.5 shall accrue no more than 15 percent of worktime credit." Here, Carmona was convicted of assault that inflicted great bodily injury and gang-related threats to victims and witnesses (§§ 136.1, 186.22), both of which are enumerated in section 667.5 (§ 667.5, subds. (c)(8), (c)(20)). She is thus entitled to 144 days of conduct credits, that is, 15 percent of 965 days of custody, with the requisite rounding down of a fractional number. (People v. Guillen (1994) 25 Cal.App.4th 756, 764 [in calculating conduct credits, fractional numbers are rounded down to whole numbers].) The judgment shall be modified to reflect the appropriate credits.
Appellate courts may properly intervene to prevent a so-called "'unauthorized sentence'" when the error is "'clear and correctable'" (People v. Scott, supra, 9 Cal.4th at pp. 353-354, quoting People v. Welch (1993) 5 Cal.4th 228, 235).
--------
On a related matter, we observe that the abstract of judgment regarding Carmona does not state the sentence imposed on count 5 ("dissuading" Brooks) or the length of the sentences which were stayed under section 654 (counts 3, 4, and 6). The abstract shall be amended to cure these omissions.
2. Gomez's Contention
Gomez contends that section 654 obliged the trial court to stay his punishment for making criminal threats to Mynor and Edgar and dissuading them as victims or witnesses (counts 2, 3, 4 and 7). He argues he cannot suffer multiple punishment for the single act of dissuading Jessica as a witness, as charged in count 1.
We reject Gomez's contention with respect to the "dissuading" offenses involving Mynor and Edgar (counts 2 and 7), but agree that punishment for the criminal threats against Mynor and Edgar must be stayed (counts 3 and 4). For the reasons explained above (see pt. F.1., ante), Gomez, like Carmona, necessarily had different goals with respect to the three victims of his dissuasion, namely, Jessica, Mynor, and Edgar. Gomez is thus properly subject to separate punishment for each "dissuading" offense.
However, Gomez cannot be subject to separate punishment for his acts of dissuading Mynor and Edgar (§ 136.1) and making criminal threats against them (§ 422). (People v. Mendoza, supra, 59 Cal.App.4th at pp. 1345-1346.) The charges of dissuading Mynor (count 2) and making criminal threats to him (count 3) relied on the same course of conduct, as did the charges of dissuading Edgar (count 7) and making criminal threats against him (count 4). Accordingly, punishment for the conviction carrying the lesser sentence under each pair of counts -- that is, the conviction for making criminal threats -- must be stayed, pursuant to section 654 (counts 3 and 4). Respondent agrees.
DISPOSITION
The judgments are modified to reflect (1) that Carmona is entitled to 144 days of conduct credit and (2) that the sentences imposed on Gomez under counts 3 and 4 are stayed pursuant to section 654. The judgments are otherwise affirmed in all respects. The trial court is directed to prepare amended abstract of judgments that fully reflect these modifications in the judgments and that cure the omissions in Carmona's abstract of judgment (see pt. F.1.c, ante), and to forward copies of the amended abstracts of judgment to the California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: EPSTEIN, P. J. WILLHITE, J.