Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. James T. LaPorte, Judge. Super. Ct. No. 06CM0288
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant Ondray Demont Johnson was convicted, following a jury trial, of assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1) and attempting to dissuade a victim and witness of a crime from making a report of that victimization (§ 136.1, subd. (b)(1); count 2). As to the assault count, the jury found appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). However, the jury returned not true findings on the gang enhancements (§ 186.22, subd. (b)(1)) attached to each count. The trial court sentenced appellant to prison for six years on count 1, plus eight months on count 2. On appeal, appellant contends (1) insufficient evidence supports his conviction of attempting to dissuade a victim and witness; and (2) Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 220, the reasonable doubt instruction, is constitutionally defective. We reverse the judgment with respect to count 2 on the ground of insufficient evidence. In all other respects, the judgment is affirmed.
Further statutory references are to the Penal Code unless otherwise noted.
The recitation of facts is limited to those relevant to the issues raised on appeal.
While housed at the Kings County Jail in cell 3B, a cell holding approximately 16 inmates, appellant and his two codefendants physically attacked fellow inmate James Nave (also known as “Bolo”). As a result of the attack, Nave suffered a number of injuries, including a ruptured eardrum and a deep contusion to the kidney, which caused blood to appear in his urine.
After the attack, Nave pushed the emergency button at the front of the cell. James Wilson, a former inmate of cell 3B, testified: “If you need to roll yourself out of the cell, you hit the button.” Wilson further explained that being “‘rolled up’” “means you collect your stuff and you move to another cell.”
Jose Hernandez was one of the officers that responded when Nave pushed the emergency button. When Hernandez arrived at cell 3B, Nave was standing by the front door and told the officers that he needed to leave the cell. Hernandez observed that Nave had some red marks on his face and was hunched over, holding his back. After Nave requested that he be taken out of the cell, Hernandez and the other officers removed him. As he was being removed, Nave looked back and stared at appellant.
With respect to count 2, attempting to dissuade a victim and witness, the prosecution introduced a taped police interview of Wilson, which was conducted eight days after the attack on Nave. In pertinent part, Wilson reported that after Nave was removed from the cell, Wilson heard appellant make the statement, “he better not tell.” Wilson confirmed that he understood this to mean that “Bolo better not tell.”
Wilson was specifically questioned as follows: “Q. Huh. After it was all said and done, and Bolo has been taken out of the room, uh, these three guys, where [sic] they saying anything? Did they say anything to you guys about um, uh, telling the police or jail staff what happened? [¶] A. Um, black dude said he was – he better not tell. [¶] Q. What did he mean Bolo better not tell? [¶] A. Yeah. [¶] Q. Okay. [¶] A. That was just – that was it.”
Appellant testified. Among other things, appellant claimed that he hit Nave three or four times in self-defense after Nave tried unsuccessfully to hit appellant. Nave was purportedly angry with appellant for telling him to take a shower. Appellant denied that he made the statement, “‘He better not tell.’” Instead, appellant recalled saying, “‘He’s going to tell.’”
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends insufficient evidence supports his conviction of attempting to dissuade a victim and witness under count 2. We agree.
On appeal, we review the entire record to determine whether it contains evidence that is reasonable, credible and of solid value on the basis of which any rational trier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We view the evidence in the light most favorable to the judgment and presume in support of the judgment every fact the trier could reasonably deduce and infer from the evidence. (Ibid.)
Section 136.1, subdivision (b)(1) prohibits any person from attempting to prevent or dissuade a victim or a witness of a crime from making a report of that victimization to a law enforcement officer. The crime of threatening a victim or witness as proscribed by section 136.1, subdivision (b)(1) is a specific intent crime. (See CALCRIM No. 2622; People v. Brenner (1992) 5 Cal.App.4th 335, 339.) To prove appellant guilty of this crime, the prosecutor had to prove that (1) appellant maliciously tried to prevent or discourage Nave from making a report that he was a victim of a crime to a law enforcement officer; (2) Nave was a victim of a crime; and (3) appellant knew he was trying to prevent or discourage Nave from making a report that Nave was a victim of a crime and intended to do so. Intent is seldom established with direct evidence but is often proved by circumstantial evidence. It is usually inferred from all the facts and circumstances surrounding the crime. (See People v. Lewis (2001) 25 Cal.4th 610, 643; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Section 136.1, subdivision (b) provides in relevant part: “Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making 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.”
Appellant contends that insufficient evidence supports his conviction because there was no evidence he specifically intended to dissuade Nave from reporting that Nave was the victim of a crime when appellant made the statement, “he better not tell.” The question appellant raises is whether the circumstances surrounding appellant’s statement were sufficient to support a reasonable inference that the statement was intended to dissuade Nave from reporting the assault. We conclude they were not.
It is undisputed that Nave was not present when appellant made the statement attributed to him by former inmate Wilson. The prosecution’s evidence showed that Nave had already alerted law enforcement officers by pressing the emergency button and had been removed from the cell before appellant said, “he better not tell.” There was no evidence Nave was within hearing of appellant’s statement or there was a chance appellant’s statement could possibly reach Nave -- such that one might infer that appellant intended his statement to actually affect Nave. Unless the defendant’s acts or statements are intended to affect or influence a potential witness’s or victim’s testimony or acts, no crime has been committed under section 136.1. (People v. Ford (1983) 145 Cal.App.3d 985, 989.)
Respondent argues that “Nave’s presence in or out of the cell is not germane to the issue of guilt.” In support of this argument, respondent correctly observes that a person may be guilty of attempting to dissuade a victim or witness whether or not the victim or witness was actually prevented or dissuaded from reporting or testifying. (People v. Neely (2004) 124 Cal.App.4th 1258, 1266.) However, this observation does not answer appellant’s argument that there was no circumstantial evidence indicating appellant intended his statement to dissuade Nave, irrespective of whether it actually had that effect. Respondent fails to point to circumstances in the record, and we have found none, that support a reasonable inference that appellant intended to dissuade Nave from reporting the assault by saying “he better not tell” after Nave had already been removed, apparently permanently, from cell 3B.
Respondent notes that prior to the assault on Nave, which led to his removal from the jail cell, there was evidence appellant and his two codefendants had engaged in “‘roughhousing’” directed toward Nave, but it had never been serious enough to cause Nave to press the emergency button or request a different cell. Respondent asserts: “The jury could, therefore, reasonably conclude that the group beating and Nave’s call to be removed, unlike previous roughhousing, warranted a threat from appellant. The words themselves, ‘better not tell,’ are unambiguous in their meaning, they were directed at a fresh crime victim, and appellant could have no other purpose but to discourage making a report.”
However, none of the circumstances respondent cites supports the conclusion that appellant’s statement “he better not tell” was indeed directed at Nave in the sense that it was intended to affect Nave’s actions. Instead, the statement was made after Nave was removed from the cell. The only known audience of appellant’s statement was Wilson, and according to his recollection, appellant did nothing more than make the statement. Appellant took no positive steps to try to ensure that either the statement or the underlying sentiment was transmitted to Nave. (Cf. People v. Foster (2007) 155 Cal.App.4th 331 [sufficient evidence of attempt to dissuade witness where the defendant asked third party to tell victim not to testify against him and third party agreed but failed to relay message to victim].) There are no such circumstances here from which the jury reasonably could infer that appellant specifically intended to dissuade Nave from reporting the crime simply by saying “he better not tell” outside Nave’s presence. Appellant’s conviction on count 2 is therefore unsupported by substantial evidence and must be reversed.
II. CALCRIM No. 220
The jury was instructed on reasonable doubt pursuant to CALCRIM No. 220 as follows:
“The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.” (Italics added.)
Appellant argues that “CALCRIM [No.] 220 is constitutionally defective because it required the jury to ‘compare’ the evidence ‘received’ at trial. The jury could have only interpreted this as requiring it to compare the evidence presented by the prosecution with the evidence presented by the defense. This language impermissibly imposed a burden on appellant to prove his innocence.” Appellant further argues: “This language not only suggests that the defendant has a duty to produce evidence to be ‘received’ and compared by the jury, but it also excludes from its consideration the evidence not received at trial, that is, the lack of evidence.”
Appellant acknowledges that similar challenges to CALCRIM No. 220 have been rejected in People v. Hernandez Rios (2007) 151 Cal.App.4th 1154 (review den. Sept. 12, 2007), People v. Westbrooks (2007) 151 Cal.App.4th 1500 (review den. Sept. 12, 2007), People v. Flores (2007) 153 Cal.App.4th 1088 (review den. October 31, 2007), and People v. Campos (2007) 156 Cal.App.4th 1228 (review den. Feb. 27, 2008). (See also People v. Garelick (2008) 161 Cal.App.4th 1107 (review den. July 9, 2008).) We see no reason to depart from the unanimous view of these cases, which include two from this court (Hernandez Rios and Flores), and reject appellant’s argument that the trial court erred in instructing the jury with CALCRIM No. 220.
DISPOSITION
Appellant’s conviction on count 2 for attempting to dissuade a victim and witness (§ 136.1, subd. (b)(1)) is reversed. The trial court is directed to prepare an amended abstract of judgment reflecting this reversal and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR
GOMES, Acting P.J., DAWSON, J.