Opinion
H036355
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. JACOB PETE CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC943374)
Defendant Jacob Pete Chavez was convicted after jury trial of bribing a witness (Pen. Code, § 137, subd. (a)), and misdemeanor violation of a protective order (§ 273.6, subd. (a)). The trial court found that defendant had a prior serious felony conviction that also qualified as a strike (§§ 667, subds. (a), (b) - (i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to prison for two years eight months and issued a three-year no-contact order pursuant to section 136.2. On appeal, defendant contends that the no-contact order should be stricken and that the concurrent sentence imposed on the misdemeanor count should have been stayed. The Attorney General concedes that the no-contact order should be stricken. We agree with the concession, but otherwise find no error. Therefore, we will modify the judgment by striking the no-contact order and affirm the judgment as so modified.
All further statutory references are to the Penal Code.
BACKGROUND
Defendant was charged by first amended information with attempting to dissuade a victim (§ 136.1, subd. (b)(1); count 1), making criminal threats (§ 422; count 2), false imprisonment (§§ 236, 237; count 3), bribing a witness (§ 137, subd. (a); count 4), battery on a cohabitant (§§ 242, 243, subd. (e); count 5), and misdemeanor violation of a protective order (§ 273.6, subd. (a); count 6). The information further alleged that defendant had a prior serious felony conviction that also qualified as a strike (§§ 667, subds. (a), (b) - (i), 1170.12), and that he had served a prior prison term (§ 667.5, subd. (b)). Defendant waived his right to a jury trial on the priors.
The Prosecution's Case
By May 2009, Gloria Paco and defendant had been dating for about eight months. On the night of May 8, 2009, Paco was staying at defendant's home while recovering from surgery. She told defendant that she needed to use the bathroom, and he followed her inside the room. She told him to get out but he refused. Defendant told her that she could go outside if she did not want him watching her. She refused and, while returning to defendant's bedroom, she said that she would urinate in defendant's car. She tried to slam the door to the bedroom shut behind her, but defendant was standing in the doorway. When she turned around, he slapped her in the face. She fell to the floor.
Paco tasted blood in her mouth. She yelled at defendant that she was going to call the police. Defendant grabbed her by the arms, lifted her up, shook her, and then dropped her. She fell back to the floor and hit her head. She yelled at and hit defendant, grabbed her nearby cell phone, and dialed 911. Defendant yelled at her, grabbed her phone from her, and broke it into pieces. They yelled at each other some more. Paco swung at defendant and tried to leave the bedroom, but the door was locked.
The parties stipulated that neither the San Jose Police Department nor the California Highway Patrol had a record of a call being received from Paco's cell phone during the relevant time period.
After about 15 or 20 minutes, Paco told defendant that she was sorry that she had upset him and that she still had to go to the bathroom. He said that she could use the bathroom and then leave. He unlocked the bedroom door and walked her to the bathroom. She used the bathroom and rinsed the blood out of her mouth. When she returned to defendant's bedroom, she packed her bags. Defendant closed the door and said that he had called his cousin to come over. He also said that he was going to have his sister beat her up, and that his sister was already on her way. There was a knock on the door. Defendant opened the door, stepped out, and closed the door. When he came back inside, he said that his cousin was there and would give her a ride.
Paco and defendant walked outside. Paco saw defendant's cousin in a truck in the driveway. Paco told him that defendant had hit her and that she was trying to leave. Defendant paced up and down the driveway and yelled that his gang and his sister were going to go after her. Defendant's cousin told Paco that he was not there to hurt her, that he had come to pick her up. Paco returned to defendant's bedroom to get her bags. As she was leaving, defendant shoved her back into the room. Defendant shut the door and told her that his cousin had left and that she was not leaving because they were not finished. While they were yelling at each other, defendant hit her in the face with his fist, knocking her to the floor.
When defendant finally opened the bedroom door, Paco ran out. He chased her around the house. When he finally allowed her to leave, she grabbed her bags, ran out to the end of the driveway, and dropped her bags. She ran to and banged on the front door of a nearby house and asked the person who answered the door to call the police. She was crying hysterically, her face was red and puffy, and her eyes were bloodshot. The neighbor called 911, and Paco talked to the dispatcher. Defendant left before an officer arrived. Paco told the officer that she did not need medical attention.
A redacted recording of the 911 call was played for the jury.
Paco spoke to defendant on the telephone the next day. He asked her what she told the police. She said, "I told them you hit me." Later, after defendant was taken into custody, she received several other calls from defendant. During one call, defendant told her not to go to court. During another call, defendant said that if she did not go to court, he would give her some money and his car. Defendant also sent Paco an unsigned letter in July 2009, and she received separate phone calls from defendant's sister, aunt, and cousin offering her money and defendant's car. The aunt said that she had talked to defendant and that he wanted to tell Paco that the offer of money and the car were still there if Paco did not come to court. A court issued Paco a restraining order on May 20, 2009, and Paco reported to the police that defendant had contacted of her in violation of the restraining order.
The Defense Case
One night in May 2009, Raul Gasca saw defendant, who was his neighbor, walking down his driveway with a woman. They were arguing with each other. Defendant had his hands behind his back and was calm, but the woman was angry. She slapped defendant twice. Gasca did not see where they went and he did not see any police in the neighborhood later that night. A day or two later, Gasca's wife told him that defendant had been taken away because he had had problems with a girl.
Defendant testified in his own behalf. He has a 2003 conviction for assault with a deadly weapon. On the night of May 8, 2009, Paco came to his home to ask about some money that had been taken from her purse when she left the purse in his car. When he said that he did not have the money, she got angry. She pushed him and accidently scratched him. He said that he was going to tell his parole officer that she did this. She told him that she was going to call the police, and she threatened to harm him if he did not give her money. When his cousin arrived and offered Paco assistance, she said that she did not need it. After his cousin left, defendant was heading inside when Paco slapped him a couple times. He noticed that a neighbor had come outside, so he walked to a nearby friend's house to cool down. He did not see where Paco went. He did not slap, hit, or punch Paco. He did not take and break her cell phone. He did not lock her in his room. He did not write her a letter. He did call her and offer to give her back things he had of hers.
The parties stipulated that defendant was arrested on May 12, 2009.
Verdicts, Romero Motion, and Sentencing
On April 26, 2010, the jury found defendant guilty of bribing a witness (§ 137, subd. (a); count 4), and misdemeanor violating a protective order (§ 273.6, subd. (a); count 6). The jury found defendant not guilty of all other counts. On May 28, 2010, the court found the alleged priors to be true.
On November 5, 2010, defendant filed a motion requesting that the court strike his prior strike. The People filed opposition to the motion on November 8, 2010. The probation report recommended that defendant be sentenced to three years eight months in prison, and that a "criminal Court protective order be issued pursuant to Section 136.2(g) of the Penal Code." On November 10, 2010, the court denied the request to strike the strike and sentenced defendant to prison for two years eight months. The sentence consists of the lower term of 16 months, doubled, on count 4, and a concurrent term of 30 days on count 6, which was deemed satisfied by credit for time served. The court imposed and struck the punishment for the prison prior. The court also stated that "[a] criminal court protective order is going to be issued for three years prohibiting any contact with Miss Paco pursuant to Penal Code section 136.2(g)." The amended abstract of judgment states: "DVPO issued no contact exp 11/10/13."
DISCUSSION
Protective Order
Defendant contends that issuance of the protective order pursuant to section 132.6 was an unauthorized sentence that should be stricken. "If a defendant is sent to prison following the conclusion of a criminal proceeding, section 136.2 does not authorize the imposition of a stayaway order." The Attorney General concedes that the protective order should be stricken. We agree with the concession.
Section 136.2 provides in pertinent part that, "upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue orders including, but not limited to, the following: [¶] . . . [¶] (4) An order that any person described in this section shall have no communication whatsoever with any specified witness or any victim, except through an attorney under reasonable restrictions that the court may impose." (§ 136.2, subd. (a).) Protective orders issued pursuant to section 136.2 are limited to the duration of the criminal proceeding in which the restraining order is issued and as prejudgment orders. (People v. Stone (2004) 123 Cal.App.4th 153, 159; People v. Selga (2008) 162 Cal.App.4th 113, 118-119.) Since the court sentenced defendant to state prison rather than granting him probation, the trial court did not have the authority to impose the protective order as part of the judgment. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383.) Therefore, we must strike the no-contact order from the judgment.
Section 136.2, subd. (g), the subdivision cited by the probation officer and the court, states: "On or before January 1, 2003, the Judicial Council shall modify the criminal and civil court protective order forms consistent with this section."
Concurrent Sentence
Defendant contends that the 30-day sentence for misdemeanor violating a protective order, which was ordered to be served concurrent to the prison term for bribing a witness, should have been stayed under section 654 "because that conviction was based on the same conduct that was involved in the bribe and was carried out with the same objective." He argues that he violated the protective order "by writing to Paco, calling Paco, and, the jury could infer, by asking his relatives to call Paco. The objective of each of the contacts, however, was simply to encourage Paco not to testify against [him] by offering to compensate her for changing her story." "Thus, in light of the fact that [the] same actions, carried out with the same objectives, were the basis for both counts, the sentence for violating the protective order should have been stayed under section 654." He also argues that this court can and should reach the question of whether section 654 should apply here even though he has already served the sentence for the misdemeanor count.
The Attorney General first contends that because the 30-day term was deemed served, there is nothing for this court to stay. "A fully served sentence cannot be stayed any more than a nonexistent sentence could be stayed." The Attorney General further contends that, in any event, the sentence does not violate section 654. "What [defendant] ignores is that there were multiple contacts with the victim; the trial court did not abuse its discretion by implicitly finding that those contacts constituted separate acts with separate objectives that could be punished separately."
Section 654, subdivision (a) states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Section 654 bars multiple punishment for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective. [Citation.]" (People v. Lewis (2008) 43 Cal.4th 415, 519.) In addition, "because the statute is intended to ensure that defendant is punished 'commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"[A] course of conduct divisible in time, although directed at one objective, may give rise to multiple violations and punishment. [Citations.]" (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Gaio (2000) 81 Cal.App.4th 919, 935 (Gaio); see also Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1248 [section 654 does not preclude punishment for each of four contemptuous acts that "are divisible temporally"].) "Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted 'one indivisible course of conduct' for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253 (Kwok).) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. (See Kwok, supra, 63 Cal.App.4th at pp. 1255-1256.)" (Gaio, supra, 81 Cal.App.4th at p. 935.)
"Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial court's findings will not be disturbed on appeal if they are supported by substantial evidence. [Citations.]" (Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.) In sentencing defendant to separate terms for the felony and the misdemeanor, the court in this case implicitly found that defendant's conduct underlying the two offenses did not constitute one indivisible course of conduct, and substantial evidence supports that finding. (Ibid.) Defendant not only contacted Paco directly by phone and letter, he had his family members contact her too. The court could have reasonably found that defendant had the "opportunity to reflect and to renew his or her intent" between each contact. (Gaio, supra, 81 Cal.App.4th at p. 935; compare People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131 [defendant's intent did not change during his continuous unlawful possession of a gun over an extended period of time].) We need not order the concurrent sentence imposed on the misdemeanor count stayed.
DISPOSITION
The judgment is ordered modified by striking the domestic violence protective order. As so modified the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: MIHARA, J. WALSH, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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