Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14143
ELIA, J.Pedro Flores Gomez appeals from a judgment following a jury trial resulting in his conviction of robbery, making criminal threats, and solicitation to commit a crime. On appeal, he contends that the conviction of solicitation was not supported by substantial evidence. Alternatively, he argues that the court prejudicially erred by failing to instruct the jury on the elements of this count and by failing to give a unanimity instruction for the solicitation and the criminal threat counts. Finally, appellant contends that the punishment for making a criminal threat must be stayed under Penal Code section 654. We find prejudicial error in the solicitation instructions. We therefore must reverse the judgment and remand for possible retrial on that count.
All further statutory references are to the Penal Code.
Background
On Friday, October 6, 2006 four friends, all members of an informal Volkswagen car club, were "hanging out" in a parking lot in Watsonville. At about 11:00 p.m., appellant approached the group, carrying a screwdriver down by his side. Most of the club members ran for their cars and left, but Jaime Solis was unable to open his car door, so Christian Ceja stayed behind with him. Appellant first talked with Solis for two or three minutes, during which he seemed to be friendly; but he acted odd, giving Solis the impression that he was under the influence of drugs.
Appellant then walked over to Ceja's car and asked him to open the door. After receiving assurances that "nothing bad's going to happen," Ceja opened the door. Appellant entered and sat in the passenger seat. Rojelio Morales and Jose Granados were in the backseat. At first the group engaged in a friendly conversation with appellant, but then, "all of a sudden he just went crazy." Appellant demanded all the money they had. He called Solis over to the car and repeated his demand to Solis, adding that if Solis did not give him money, one of his friends would get stabbed. Appellant seemed angry and desperate. He took Solis's wallet and some other belongings, and the other three gave appellant money. Appellant also took a hat and some CDs. He told the group that he knew where Ceja and Morales lived, and that if they ever called the police, he was going to find all of them and kill them.
Appellant continued talking with the group, still in an angry manner, until a police officer approached. He then ran away, dropping some of the money and Solis's belongings. The officer told him to stop, but appellant continued running, and a chase ensued. Eventually the officer was able to use a taser to stop appellant, at which point he arrested appellant for robbery and resisting arrest. Several days after his arrest he made a series of telephone calls from jail to urge his friends to "get at" the victims so they would not come to court.
Appellant was charged with four counts of second degree robbery (counts 1, 2, 5, 6; § 211), making a criminal threat (count 3, § 422), dissuading a witness by force or threat (count 4, § 136.1, subd. (c)(1)); resisting a peace officer, a misdemeanor (count 7, § 148, subd. (a)(1)); and solicitation to commit the crime of intimidating a witness (count 8, § 653f, subd. (a)). Attached to each of the first two counts was the allegation that appellant had committed the robbery with the personal use of a deadly weapon, a screwdriver. (§ 12022, subd. (b)(1); § 1192.7, subd. (c)(23).) At trial each of the four witnesses testified against appellant. Appellant also testified; he said that he was so drunk that he did not remember any details of that night; it was all a "big blur."
Appellant was found guilty on all counts except for dissuading a witness by force or threat (count 4), on which the jury hung. The court declared a mistrial as to that charge. On May 16, 2007, the court sentenced appellant to prison for five years, four months.
Discussion
1. Substantial Evidence of Solicitation
Appellant first argues that the conviction on count 8, solicitation to commit the crime of dissuading a witness by force or threat of force, was not supported by the evidence presented at trial—specifically, evidence of force or threat. This element, he argues, was neither alleged nor proved.
Section 653f punishes solicitation in accordance with the seriousness of the target crime. Appellant was convicted under subdivision (a), which states: "Every person who, with the intent that the crime be committed, solicits another to offer, accept, or join in the offer or acceptance of a bribe, or to commit or join in the commission of carjacking, robbery, burglary, grand theft, receiving stolen property, extortion, perjury, subornation of perjury, forgery, kidnapping, arson or assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury, or, by the use of force or a threat of force, to prevent or dissuade any person who is or may become a witness from attending upon, or testifying at, any trial, proceeding, or inquiry authorized by law, shall be punished by imprisonment in a county jail for not more than one year or in the state prison, or by a fine of not more than ten thousand dollars ($10,000), or the amount which could have been assessed for commission of the offense itself, whichever is greater, or by both the fine and imprisonment." (§ 653f, subd. (a), italics added.)
Appellant correctly asserts that the Legislature intended the "use of force or a threat of force" to accompany the act of preventing or dissuading the witness, not the solicitation. The People do not oppose this construction. Thus, the parties agree that appellant was guilty of solicitation if he asked his friends to threaten the witnesses with force in order to dissuade them from appearing in court. Appellant contends that there was no evidence that he ever solicited the use of either force or threatened force to persuade the witnesses not to appear in court.
In considering appellant's insufficiency argument, we must "review the whole record in the light most favorable to the judgment 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." (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Mayfield (1997) 14 Cal.4th 668, 767.)
The evidence presented on count 8 consisted of the four telephone calls appellant made from jail while awaiting the preliminary hearing and arraignment. Raul Castellanos, an inspector with the county district attorney's office, tape-recorded these calls, which the prosecutor played to the jury. In his own testimony appellant admitted making the calls. He said he was "not proud of it"; he had been "looking at a lot of time here and [was] scared" at the time.
In the first telephone call, made on October 12, 2006, he asked "Juan" to get together with "Daniel" to "do a job" for him, to "take a little cruise down in Jack-In-The-Box," and look for "rabbit cars," a red one and a gray one. There were four of them who "made a huge mess," he told Juan, and now he was facing prison for four robberies. Appellant said he "really need[ed] this done" and he really needed the "homeboys" to "get at these fools." On October 22, he called his girlfriend, Jessica Marquez, and asked if she had seen "Danny Boy." He told her to "tell those fuckers to . . . go to Jack-In-The-Box . . . and fuckin' see what's up with that." He added, "it's a red and the gray," and he told Marquez that "Danny Boy" "should already know what's up."
On October 30 appellant again called Juan and explained that the two cars were the same except that one car was gray and the other, red. Juan suggested that they would have to see who came to court. On November 1, appellant placed the last of the taped calls, to Daniel, or "Dynamo." Appellant seemed to believe that no one would know what they were saying. He said, "I'm, hey, man, I need you guys to do something, homie," about "getting at those fools." Appellant wanted Daniel to "have some words with them, to tell them . . . that they should drop everything . . . that they're giving me, me a shitload of time." His hope was that the victims would not show up in court and he would be released.
Appellant points out that during these phone calls he did not mention the use of force or threats. In this case, however, the trier of fact had to rely on circumstantial evidence and inferences from the words used by appellant in the recorded telephone conversations. We may not act as "appellate factfinder" here and reverse by substituting our own inferences from the conversations for any rational inferences drawn by the jury on appellant's meaning. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.) "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence . . . it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citation.]" ' " (Ibid., quoting People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
In light of these established principles, we cannot conclude that the jury was wrong in inferring that appellant intended his friends to commit the crime of dissuading a witness by force or threat. Appellant had already warned the victims that if they contacted the police he would kill them. It was not necessary that appellant explicitly direct his friends to use force or threats to prevent them from coming to court. He ascertained that Juan knew what he wanted -- "You already know what I'm getting at with this, you know?"-- and clearly conveyed his objective that his friends "get at those fools," so that those "fools," the victims, would be too intimidated to appear and testify against him. Viewing the statements appellant made in the context of the conversations as a whole, and taking into account the circumstances of the predicament he faced, we believe the jury could have inferred the requisite elements from the words used by appellant.
2. Solicitation Instructions
Appellant alternatively contends that the trial court violated the Fifth and Sixth Amendments by failing to instruct the jury that solicitation in this case required appellant to solicit the dissuasion by force or threat. The People respond that any error was harmless: Given the facts presented at trial, the jury "could not have been mislead [sic] or confused that appellant must have intended the people he solicited to use force or threat of force if necessary to intimidate the victims, even if the instruction was flawed in not specifically referring to force or threat of force." The People maintain that no rational jury could have failed to find threat or force in light of the other instructions given and the circumstances of the other counts.
The trial court read CALCRIM No. 441, which instructs the jury that solicitation requires the act of requesting the commission of a crime and the defendant's intent that the requested crime be committed. As the Bench Notes state, an instruction on solicitation should also include the elements of the target offense so that the jury can determine whether that offense was actually solicited as charged. (People v. Baskins (1946) 72 Cal.App.2d 728, 732.) To comply with this admonition, the court referred the jury to its instruction on "intimidating a witness," set forth in CALCRIM No. 2622, which had already been given in connection with Count 4, dissuading a witness by force or threat. The court did not add the requirement of section 653f that the act must be a solicitation to use force or threat of force in dissuading a witness.
The court instructed the jury on this count as follows: "The defendant is charged in Count 8 with soliciting another person to commit a crime. [¶] To prove that the defendant is guilty of this crime the People must prove that, one, the defendant requested or solicited another person to commit or join in the commission of the crime of intimidating a witness and, two, the defendant intended that the crime of intimidating a witness be committed, and, three, the other person received the communication containing the request. [¶] To decide whether the defendant intended that the person commit the crime of intimidating a witness[,] please refer to the separate instructions that I will give you on that crime. [¶] The crime of solicitation must be proved by the testimony of at least one witness and corroborating evidence." The court then defined "corroborating evidence" and concluded by stating that "[a] person is guilty of solicitation even if the crime solicited is not completed or even started. The person solicited does not have to agree to commit the crime."
In fact, the court did not use the words "dissuading a witness" in its description of the target offense; instead, using the label of CALCRIM No. 2622, it referred to "intimidating." Appellant does not take issue with the substitution of this term, but focuses on the omission of the "force or threat of force" element.
We agree with appellant that the omission of this element was error. The People's suggestion that the term "intimidate" implies the use of force or threat of force is not convincing. Adherence to the court's instructions on intimidation would encompass an act in which the defendant "maliciously tried to prevent or discourage" any of the victims from reporting the crime. Supplementing this explanation with the definition of "maliciously" did not narrow the jurors' options: they were told that a person acts maliciously "when he or she actually intends to annoy, harm or injure someone else in any way or intends to interfere in any way with the orderly administration of justice." These instructions, taken together, do not compel a finding of conduct involving force or threat of force, but invite the jury to find an attempt to coerce a witness by any conduct falling on a wide spectrum from informal conversation to emotional entreaty to menacing demeanor or direct force. If milder conduct is exhibited with the mere intent to annoy the witness or simply interfere with the orderly administration of justice, it is sufficient for purposes of a finding of intimidating a witness within the meaning of CALCRIM No. 2622. It would not, however, amount to dissuasion by force or threat of force. We must conclude, therefore, that instructional error occurred.
An instruction that relieves the prosecution of its burden to prove every element beyond a reasonable doubt violates a defendant's due process rights under both federal and state Constitutions. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [113 S.Ct. 2078]; People v. Flood (1998) 18 Cal.4th 470, 479-480; cf. People v. Figueroa (1986) 41 Cal.3d 714, 726 [directed finding of element improperly removed issue from jury].) Erroneous instructions --and those omitting an element of an offense -- "also implicate Sixth Amendment principles preserving the exclusive domain of the trier of fact." (People v. Flood, supra, 18 Cal.4th at p. 491; People v. Cummings (1993) 4 Cal.4th 1233, 1312, fn. 54.) "Thus, a trial court's failure to instruct on an element of a crime is federal constitutional error." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)
The parties agree that the error here is subject to harmless-error analysis under Chapman v. California (1967) 386 U.S. 18 (87 S.Ct. 824); thus, we must next consider whether it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Neder v. United States (1999) 527 U.S. 1, 15 [119 S.Ct. 1827]; People v. Lamas (2007) 42 Cal.4th 516, 526.) "If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error -- for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding -- it should not find the error harmless." (Neder v. United States, supra, 527 U.S. at p. 19.)
The People maintain that the omission of the "force or threat of force" element is harmless under Chapman because "no rational jury could have found the missing element unproven." We disagree. " 'To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' (Yates v. Evatt (1991) 500 U.S. 391, 403-404, 111 S.Ct. 1884, 114 L.Ed.2d 432.) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was surely unattributable to the error.' " (People v. Neal (2003) 31 Cal.4th 63, 86, quoting Sullivan v. Louisiana, supra, 508 U.S. at p. 279; see also People v. Flood, supra, 18 Cal.4th at p. 557 [dis. opn. of Kennard, J. (instruction precluding jury consideration of element prejudicial, as guilty verdict could not be said to be surely unattributable to the error)].) Even applying the more specific test of Neder v. U.S., supra, we cannot avoid the conclusion that "the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." (527 U.S. at p. 19.) The most explicit directive appellant made in the telephone conversations was, "I really need you guys to get at these fools, eh?" Viewed in the context of his other statements, it is conceivable that this jury, properly instructed, could rationally have found the element of force or threat of force missing. Thus, although we have upheld the jury's factual finding on this issue by examining the evidence favorably to the judgment, we cannot uphold the conviction under the more stringent standard of prejudice for instructions that omit an element of a crime. The conviction of solicitation cannot stand.
3. Unanimity Instructions
Appellant next contends that the court should have instructed the jurors that they must unanimously agree on which of the four telephone calls contained the statement soliciting the intimidation. He also argues that a unanimity instruction was necessary as to the criminal threats.
A unanimity instruction "must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act." (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.) "[T]the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (People v. Russo (2001) 25 Cal.4th 1124, 1135.)
When the acts alleged are so closely connected as to form part of one transaction, courts apply the "continuous conduct" exception. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Under this rule, a unanimity instruction is not required "if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them." (People v. Crandell (1988) 46 Cal.3d 833, 875, disapproved on another point in People v. Crayton (2002) 28 Cal.4th 346, 364.) " '[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.' " (People v. Beardslee (1991) 53 Cal.3d 68, 93; see also People v. Riel (2000) 22 Cal.4th 1153, 1199.)
In light of our conclusion that the solicitation conviction was tainted by an inadequate instruction, we need not decide whether a unanimity instruction was necessary for solicitation. With respect to the criminal threat, appellant contends that the jury could have convicted him on count 3 while disagreeing about which threat constituted the section 422 violation. Appellant believes that he was convicted of the first threat, to stab one of them if the victims did not give him money, because they hung on count 4, which "concerned precisely the same threat." The prosecutor, on the other hand, argued that count 3 was based on the threat to kill the witnesses if they contacted the police.
At the risk of rendering an advisory opinion on an issue that may not arise after remand, we do observe that the telephone calls, which appellant admitted making, were not "discrete criminal events," but rather part of a continuing course of conduct, the "central objective" of which was to ensure that appellant's friends intimidate the witnesses into refraining from appearing in court. (People v. Harris (1994) 9 Cal.4th 407, 432, fn. 14.) The calls were substantially identical in nature, the parties did not distinguish between the four calls, and the defense to each —he exercised "very poor judgment" because he was "scared" -- was the same. Accordingly, if a juror were to find solicitation in one telephone call, it is inconceivable that the juror would not also conclude that the others were further acts of solicitation of the same nature. (Cf. People v. Champion (1995) 9 Cal.4th 879, 932.)
Appellant acknowledges that a unanimity instruction is not required if the prosecutor makes a clear election of one threat as the basis of the charge. (See, e.g., People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Contrary to appellant's assertion, that election may be made during argument to the jury. (Ibid; see also People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455.) Here, the prosecutor explained his position on Count 3 during opening argument: "Making a criminal threat. This is for saying to the victims if you talk to the police I'll kill you. I know where you live. We have to show that the defendant willfully threatened to unlawfully kill the victim which he did. The defendant made the threat. Again no issue about that. The defendant intended his statement to be understood as a threat. Well, there's really no other way to understand if you do this then I'll kill you. That's pretty clearly an intent and intended to communicate it. Again, not a tough call. The threat was so clear, immediate, unconditional and specific that it communicated a serious intent and the immediate prospect of being carried out. It doesn't get any more clear, immediate, unconditional and specific. If you talk to the cops I'll kill you. Very plain language."
Here the prosecutor made an opening argument but chose not to argue further after defense counsel addressed the jury.
This language was sufficient to constitute an election. It was not comparable to the insufficient election made in People v. Melhado (1998) 60 Cal.App.4th 1529, on which appellant relies. There the prosecutor informed the court, but not the jurors, of his election. During closing argument he referred to three separate events constituting threats; at best, it was "possible to parse the prosecution's closing argument in a manner which suggests that more emphasis was placed on the 11 a.m. event than on the others." (Id. at p. 1536.) Here the prosecutor clearly and directly informed the jury that Count 3 was based on the threat to kill the victims if they contacted the police.
Moreover, even if the election was insufficient, there was no dispute that defendant made all of the threatening statements close together. His only defense was the same to all of them: he was "so intoxicated" on whiskey that he "d[id]n't even know what he [was] doing." Consequently, this is not a case in which " 'the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.' " (People v. Beardslee, supra, 53 Cal.3d at p. 93.) On the contrary, " 'any juror believing one act took place would inexorably believe all acts took place.' " (Ibid.) The instruction was therefore not necessary as to this count.
4. Section 654
The trial court sentenced appellant to the midterm of three years in prison for the first robbery (count 1), plus one year for the use of a deadly weapon. Counts 2, 5, and 6, the other robberies, resulted in identical sentences, concurrent with the term on count 2. The court imposed a consecutive eight-month term for count 3, the criminal threat, another consecutive eight-month term for count 8, the solicitation, and a concurrent 60 days for the misdemeanor conviction on count 7, resisting a peace officer. The total term was therefore five years, four months. Appellant contends that the sentence for count 3, the criminal threat, should have been stayed under section 654 because it was part of the same course of conduct as the robberies.
Section 654 states, in relevant part, "(a) 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." As interpreted by the Supreme Court, this provision prohibits multiple punishment not only for a "single act or omission" but also for a single, indivisible course of criminal conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) " 'It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' " (People v. Hicks (1993) 6 Cal.4th 784, 789; quoting People v. Harrison (1989) 48 Cal.3d 321, 335.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551.) The determination of whether a defendant acted with a single a defendant's intent and objective is generally a factual matter for the trial court to determine. (People v. Osband (1996) 13 Cal.4th 622, 730.) Accordingly, we must uphold the trial court's determination if it is supported by substantial evidence. (Ibid.)
The success of appellant's argument depends on the factual premise that count 3 was based on the threat to stab one of the victims if they did not give him their money. If this were an accurate description of the charged offense, we would agree that appellant must have harbored the same intent and objective -- to take the victims' money -- as in the robberies. But the prosecutor made it clear that he was relying on the threat to kill them if they talked to the police. The parties clarified this fact at the sentencing hearing, when defense counsel argued that the threat was "within the course" of the robbery. Preventing the four men from reporting the crime constituted a different intent and objective from the goal of obtaining their money, which appellant had already accomplished when he made the threat. "It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Because the threat in this case occurred after the taking was accomplished and was made to avoid prosecution, substantial evidence supports the trial court's finding that the threat constituted a divisible act within the meaning of section 654. The trial court therefore did not err in declining to stay punishment for count 3.
Disposition
The judgment is reversed and remanded for possible retrial on count 8, the solicitation charge (§ 653f). If the prosecutor elects not to retry this count within 30 days after remittitur, the trial court shall proceed to resentence appellant on counts 1, 2, 3, 5, 6, and 7.
WE CONCUR: RUSHING, P.J., PREMO, J.