Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. VA097929 Roger Ito, Judge.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Juan Jose Gonzales, appeals from the judgment entered following his conviction, by jury trial, for attempted voluntary manslaughter, making criminal threats, dissuading a witness, corporal injury to a spouse, child abuse (2 counts), possession of a firearm by a felon and aggravated assault (3 counts), with firearm use findings (Pen. Code, §§ 664/192, 422, 136.1, 273.5, 12021, 245, 12022.5). Sentenced to state prison for 15 years, Galan claims there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
Defendant Gonzales and Gladys Lopez lived together with their one-year-old daughter and Lopez’s five and four-year-old sons. On October 27, 2006, Gonzales returned home with hamburgers for Lopez and the children. There had been an argument earlier that day because Lopez received a letter which Gonzales took away from her. The letter apparently said some disparaging things about Gonzales. When Lopez said she wasn’t interested in the “fucking hamburgers,” Gonzales made a comment about her attitude, kicked her in the leg and went outside. When he returned, he bent over Lopez like he was going to kiss her, but instead he bit her hard on the cheek. Lopez picked up a phone, dialed 911, and told Gonzales she was calling the police. Gonzales grabbed the phone and threw it out the door. The phone broke.
Lopez went into the bathroom. She wanted to take a shower to give Gonzales time to calm down. Lopez began knocking on the door and yelling at her to open it. Lopez opened the door. Gonzales started hitting her on the back and in the face. He hit her more than 10 times.
Gonzales then ordered her to go out to the garage with him. When Lopez came out of the bathroom, she picked up the one-year-old, thinking Gonzales would be less likely to hurt her if she were holding their child. When they got to the garage, Gonzales grabbed a rifle from inside a sofa and threatened to shoot her. Lopez pushed the rifle aside just before it went off. Gonzales and Lopez argued some more. At one point, Lopez put her daughter down and the child walked out of the garage. Gonzales was still holding the rifle. Lopez testified, “He pointed it at me, he say . . . so now we alone, so now he can kill me.” Then Gonzales took out his cell phone. Although what happened next is not precisely clear from Lopez’s testimony, it appears Gonzales dialed 911, handed the phone to Lopez and, when the call did not immediately go through, he grabbed the phone back and said, “You better call the police before I kill you, bitch.” Gonzales then threw his cell phone to the ground, breaking it.
“Q So you saw Juan dialing on this phone? [¶] A Yes. He told me to dial 911 because he don’t want to hurt me, so he dialed for me, he give it to me. I say, ‘It’s not going through.’ ” “He had called 911 on the phone. I don’t know if it went through. I don’t know what happened.”
“Q As you can tell, this phone is missing some pieces. What else did you see [Gonzales] do with this phone? [¶] A After he grabbed the phone . . . he threw [it] in the garage, there was plants there, and he threw it there. [¶] Q Did you see this phone break? [¶] A Yes, I did.”
Officer Rick Curiel arrived at the house and found the rifle under a sofa cushion in the garage. Gonzales was hiding in a bedroom closet behind some laundry.
Photographs were introduced showing the injuries Lopez sustained that day from being assaulted by Gonzales.
Gonzales did not present any evidence.
CONTENTIONS
1. There was insufficient evidence to sustain the conviction for dissuading a witness by force or threat.
2. The trial court erred by giving CALCRIM 220 (definition of reasonable doubt).
DISCUSSION
1. Sufficient evidence to sustain conviction for dissuading witness.
Gonzales contends there was insufficient evidence to sustain his conviction for dissuading a witness by force or threat (§ 136.1). This claim is meritless.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, 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. [Citation.] 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 [citations], 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.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“Section 136.1 criminalizes trying to dissuade a victim from reporting a crime. The offense can be either a misdemeanor or felony; if the perpetrator tried to dissuade by using force or the threat of force, it is a felony. (§ 136.1, subd. (c).)” (People v. Ortiz (2002) 101 Cal.App.4th 410, 415-416.) “The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying. [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1210.)
Section 136.1, subdivision (a), provides, in pertinent part: “Except as provided in subdivision (c), any person who does 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: [¶] . . . [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” Subdivision (c) of section 136.1 provides: “Every person doing any of the acts described in subdivision (a) . . . knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.”
b. Discussion.
Gonzales asserts there was no evidence showing his “actions were done to prevent [Lopez] from reporting the incident. In one of the instances, it appears that appellant was the one who instigated making the call to 911. The parties were having a heated argument which continued throughout the entire incident. The testimony does not support the contention that appellant knew [Lopez] was calling for help and intended to block her from doing so. [Lopez] testified that appellant did not threaten to hurt her if she called 911.” Gonzales argues “[t]he evidence supports the theory that when [he] grabbed the phones and threw them, it was out of anger and being caught up in the argument, rather than from an intention to prevent [Lopez] from reporting the incident.”
The latter argument is one properly made to the trier of fact, not to a reviewing court. Indeed, it’s just what defense counsel here told the jury: “The phones are broken, I understand that. And he threw the phones, I understand that. But at this point it is just out of anger. They are fighting. They’re arguing. He’s pissed. That’s the bottom line. [[¶] I wouldn’t be making this point with you if the evidence showed, as the elements require, that my client . . . was trying to prevent [Lopez] from reporting a crime. [¶] The evidence only suggests it was out of anger, just continuing a fight. That’s it. There were no, like, statements, ‘Hey, you called the cops. I’m going to kill you.’ ‘You call the cops, I’m going to kill the kids.’ There’s none of that.” The jury, however, was not persuaded by this defense and there was nothing irrational about the jury’s decision.
Evidence that Gonzales had been trying to prevent Lopez from reporting him to the police did not have to be in the form of express threats. As the Attorney General argues, “If [his] words or actions reasonably implied that appellant attempted by threat of force to induce Lopez to withhold reporting the incident, then the evidence supports the conviction.” “ ‘There is, of course, no talismanic requirement that a defendant must say “Don’t testify” or words tantamount thereto . . . . As long as his words or actions support the inference that he . . . attempted by threat of force to induce a person to withhold testimony [citation], a defendant is properly’ convicted of a violation of section 136.1, subdivision (c)(1).” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [rational juror could find defendant’s statement that he would talk to guys from Happy Town was implied threat to have gang members assault the victim]; see also People v. McElroy (2005) 126 Cal.App.4th 874, 877 [defendant violated section 136.1 when, during argument, his domestic partner said she was calling police and he “responded by taking the telephone away from her and hanging it up”].)
Here, both of the telephone incidents satisfied the elements of section 136.1. During the first incident, the evidence showed Lopez told Gonzales she was calling 911. His reaction was to grab the phone and disable it by throwing it out the door. A reasonable jury could have concluded this evidence showed Gonzales intended to stop Lopez from reporting him to the police. A reasonable jury could have concluded Gonzales had the same intention during the second incident, even though he had ostensibly initiated that 911 call. Given the fact he had just fired a rifle within inches of Lopez’s head, and then grabbed the phone back from her and disabled it, Gonzales’s actions could have been reasonably viewed as intended to communicate this message, “Don’t you dare try to report me to the police.”
In People v. Young, supra, 34 Cal.4th 1149, the defendant argued on appeal that the prosecution had not proved the specific intent required by section 136.1 because his statement “ ‘[Y]ou snitched on me and my lawyer had it in black and white and I should have killed you’ neither referred to any future testimony by Ross [the victim] nor constituted a threat to do anything in the future.” (People v. Young, supra, at p. 1210.) Young rejected this claim: “It is the combination of defendant’s actions and words . . . that provides sufficient evidence that he intended to intimidate Ross from testifying at trial. Defendant violently punched Ross about the face and told him, ‘I should have killed you’ because he had learned from his attorney that Ross had ‘snitched’ on him regarding this case. Jurors reasonably could have drawn the inference that the message Ross received from defendant’s retribution for Ross’s past cooperation with the police was that defendant would again harm him physically if he continued to cooperate in the future (e.g., by testifying at trial).” (Ibid.) Similarly, the combination of Gonzales’s actions and words demonstrates he intended to dissuade Lopez from reporting him to the police.
2. Trial court properly instructed jury with CALCRIM 220 on reasonable doubt.
Gonzales contends the trial court erred by giving CALCRIM 220’s definition of reasonable doubt because that instruction prevented the jury from considering whether a lack of evidence showed there was reasonable doubt as to his guilt. This claim is meritless.
The trial court instructed the jury with CALCRIM 220, as follows:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has 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 the 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 defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.” (Italics added.)
Gonzales asserts the instruction’s italicized words were misleading because they focused exclusively on evidence that had been presented at trial, while ignoring inferences that might have been drawn from an absence of evidence. Gonzales argues, “The commentary to CALCRIM No. 220 states: ‘This instruction is based directly on section 1096. The primary changes are a reordering of concepts and a definition of reasonable doubt stated in the affirmative rather than in the negative.’ This change from the negative to the affirmative imposes on the defendant an affirmative duty to present evidence of the lack of evidence, which is of course impossible. Of course the defendant can argue lack of evidence, but other instructions (CALCRIM 222) have excluded argument from evidence to be considered by the jury.”
Section 1096 provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’ ”
CALCRIM 222 provides, in pertinent part: “ ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.”
“If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [Citations.] ‘ “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” [Citations.]’ ” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)
We agree with the Attorney General’s assessment that “nothing in the language of [CALCRIM 220] requires a defendant to show reasonable doubt or to show the lack of evidence as to any pertinent issue.” This is the conclusion reached by several cases which have rejected precisely the same claim Gonzales makes here. We agree with the analyses given by these courts. (See People v. Garelick (2008) 161 Cal.App.4th 1107, 1119 [no reasonable likelihood jury understood CALCRIM No. 220 to shift burden of proof to the defense]; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509 [“[CALCRIM 220] informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving Westbrooks’s guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.”]; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157 [“CALCRIM 220 uses verbs requiring the jury ‘compare and consider all the evidence that was received throughout the entire trial.’ CALJIC No. 2.90 uses nouns requiring ‘the entire comparison and consideration of all the evidence’ by the jury. Ríos fails to persuade us that those grammatical differences are material.”].)
The trial court did not err by instructing the jury with CALCRIM 220.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.