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People v. Hall

California Court of Appeals, Third District, Yuba
Jul 22, 2008
No. C050642 (Cal. Ct. App. Jul. 22, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EUGENE VIRGIL HALL, Defendant and Appellant. C050642 California Court of Appeal, Third District, Yuba July 22, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CRF0558

ROBIE, J.

A jury found defendant Eugene Virgil Hall guilty of assaulting Kimberly Smith with a deadly weapon causing great bodily injury, battering Smith causing serious bodily injury, battering Steven Britt, and attempting to dissuade Smith from coming to court. In a bifurcated proceeding, the trial court found true allegations defendant had five prior convictions within the meaning of the three strikes law and for purposes of the five-year enhancement statute.

Defendant was sentenced to 78 years to life in prison, with credit for 891 days (775 actual days and 116 conduct days). He appeals, raising various challenges to his convictions and sentence. We shall reverse and remand to the trial court for resentencing or (at the People’s election) retrial on the issue of whether defendant’s 1999 conviction for battery with serious bodily injury constitutes a serious or violent felony within the meaning of the three strikes law or for purposes of the five-year enhancement statute, direct the trial court to award defendant one additional day of presentence custody credit, and otherwise affirm the judgment.

The trial court sentenced defendant to 25 years to life for assaulting Smith, plus three years for personally inflicting great bodily injury; a concurrent six months for battering Britt; a consecutive 25 years to life for attempting to dissuade Smith; and an additional five years for each of his five prior prison terms. His sentence for battering Smith was stayed pursuant to Penal Code section 654.

Defendant’s original opening brief was filed on April 4, 2006. In that brief, defendant argued there was insufficient evidence to support his conviction for attempting to dissuade a victim, or alternatively, section 136.1, subdivision (a)(2) is overbroad in violation of the First Amendment. On May 21, 2007, the Central California Appellate Program (CCAP) requested defendant’s appointed counsel be relieved and replacement counsel appointed. On May 24, 2007, we granted CCAP’s request and appointed defendant new counsel. On June 11, 2007, we granted defendant’s request to file a supplemental brief. Defendant’s supplemental brief was filed on August 10, 2007, and raised eight additional issues.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of July 13, 2003, Smith, Britt, defendant, and several others gathered on a driveway Smith shared with her neighbor on Almond Avenue in Yuba County. People were drinking, including Smith. At approximately 10:30 p.m., Smith was hit in the face with a baseball bat or stick and suffered a crushed eye socket, broken jaw, and cracked nose. She later identified defendant as her assailant.

Smith was interviewed at the scene and said she had been confronted by “three to four white male adults,” did not “see her assailant,” but “thought she recognized the white male holding the weapon.” Several hours later, she said she was hit by one person and identified defendant as her assailant in a photographic lineup. At trial, she identified defendant as her assailant. There was no doubt in her mind that he was the person who hit her.

Marcus Crans was among those who had gathered on the driveway that night and was “extremely intoxicated.” He saw Smith get hit and identified defendant as her assailant.

Steven Britt also was present on the night in question and was hit in the face. Two days later, he identified defendant as his assailant. At trial, however, he testified he did not see who hit him.

Laura Ann Murphy was with defendant on the night in question. She did not see Smith get hit, but she did see defendant strike Britt in the face. After Smith was hit, defendant asked Murphy to “agree with him” about “[w]hat had happened” and to say he had not been out of her sight all evening, even though that was not the case.

Elvin Favors, who lived near Smith, heard people partying on the night in question and went to take a look. Through his fence, he saw three or four men “going on and on about something.” He then saw a woman approach the men and begin using foul language. An argument ensued, and two or three of the men removed “long stick kind of things” from the back of a pickup, and “and one guy just hit her and she fell.” The men then got on top of her and began kicking and punching her.

T. A., a 12-year-old boy who also lived nearby, “heard all the commotion outside” and went to investigate. He heard someone say, “Sean, you tell that mother fucking nigger come down here and fight us. This is bullshit. They keep messing with us.” T. A. was interviewed later that night and identified defendant from a photographic lineup as the person who made the statement. At trial, however, T. A. repeatedly testified he did not see defendant make the statement and did not know who made it. Rather, he had seen defendant “partying around there” that evening.

On July 3, 2004, Deputy Christopher Heath was monitoring inmates at the Yuba County Jail when he saw an inmate in the B pod pick up a note next to the door between the A and B pods; he did not see anyone pass the note. Heath ordered the inmate to bring him the note. The name “Chuck Allison” appeared on the outside of the note, and the note read: “Daryn, my respects to you over there. Listen bro, I know your cousin or nephew Sean Couch is over there and is getting out real soon. He knows my alleged victim Kim lives on Almond. Tell him to handle that shit and tell . . . her not to come to court anymore. Shit bro, she’s the only one coming. And if she don’t come, I walk. See what I’m talking about? I send mine to you, Chuckie, and anyone else who has it coming. Lightning bolts. St[o]mp of the boot and right arm salute. Lightning bolts. Get back at me on paper and let me know.” The note was signed “Genester,” and there was a swastika under the signature. On the day the note was recovered, defendant was housed in the A pod, and Charles Allison, Sean Couch, and Daryn Carter were housed in the B pod. “Genester” is defendant’s nickname. He has the word “Genester” tattooed on his back, and the word “Yuba” with a picture of two lightning bolts tattooed on his stomach.

Defendant testified in his own defense. He admitted having six “felony strikes,” including convictions for assault. He denied assaulting Smith or Britt. He said Marcus Crans, Anthony Edwards, and Kenny Micardo assaulted Smith, and Anthony Edwards and Steven Shoemaker assaulted Britt. He acknowledged that on the night of the incident, he said “Kenny and Anthony” assaulted Smith and that he did not mention Crans until trial.

Defendant admitted writing the note intercepted by Deputy Heath at the jail. He claimed he wrote it because he wanted his friends to persuade Smith to tell the truth. He explained that the phrase “St[o]mp of the boot and right arm salute” is a “[w]hite saying when you sign of [sic] our letters to another white man” and agreed “lightning bolts” is “part of that phraseology” and the swastika commonly means “World War II Nazi Germany.”

DISCUSSION

I

Any Defect In T. A.’s Pretrial Or In-Court Identification Of Defendant Was Harmless Beyond A Reasonable Doubt

Defendant contends “the impermissibly suggestive pre-trial identification procedures and [T. A.’s] tainted in-court identification” of defendant violated his right to due process of law under the Fifth and Fourteenth Amendments to the federal Constitution. He argues the photographic lineup shown to T. A. was “unduly suggestive” and unreliable because defendant was “the only one who did not appear to be Hispanic” and “the only one who did not have facial hair,” and thus, “evidence of [T. A.’s] pre-trial identification,” as well as “the trial lineup” should have been excluded. He claims the inclusion of this evidence cannot be deemed harmless because T. A.’s “testimony was significant in placing [defendant] at the scene and . . . in attributing a racial remark to him.”

We need not decide whether the pretrial identification procedures were unduly suggestive and tainted T. A.’s in-court identification because, as we shall explain, any error in admitting evidence of T. A.’s pretrial identification or allowing the in-court identification was harmless beyond a reasonable doubt. (See People v. Carlos (2006) 138 Cal.App.4th 907, 912.)

The key issue in this case was who assaulted Smith and Britt. T. A. did not identify defendant as the person who assaulted either victim; he did not see who hit Smith and was not asked about Britt. While he did testify he saw defendant, along with others, at the scene, his testimony was not necessary to establish defendant’s presence. Numerous witnesses testified defendant was present, and defendant admitted he was there.

Similarly, while T. A. at least initially attributed a racial remark he heard on the night in question to defendant, that defendant harbored racial animus toward nonwhites is clear from the jailhouse note he admitted writing and his testimony concerning the meaning of the phrases “St[o]mp of the boot and right arm salute” and “lightning bolts” and the swastika symbol contained therein. Moreover, there is no indication in the record that Smith, Britt, or anyone present on the night in question was African-American. On this record, we have no trouble concluding, beyond a reasonable doubt, that evidence defendant made the above-mentioned racial remark made no difference in the outcome of the case.

II

Any Error In Admitting Evidence Defendant Made The Racial Remark Was Harmless Beyond A Reasonable Doubt

Defendant separately contends the trial court abused its discretion in admitting evidence he made the racial remark set forth above. He argues such evidence “was irrelevant, and whatever relevance it did have to the issues in the case was outweighed by its inflammatory nature and its potential to confuse the issues.” (Evid. Code, §§ 350, 352.)

We need not decide whether the trial court abused its discretion in admitting such evidence because, as previously discussed, any error in doing so was harmless beyond a reasonable doubt. (Ante, part I.)

III

The Jury Was Adequately Instructed In The Evaluation Of Witness Credibility

Defendant next argues “[t]he trial court violated [his] federal rights to due process and to present a defense in failing to instruct” the jury sua sponte in accordance with CALJIC No. 2.21.2 that it “may reject the whole testimony of a witness who willfully has testified falsely as to a material point.” He is mistaken.

CALJIC No. 2.21.2 reads: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”

The absence of an instruction regarding a particular factor in the evaluation of a witness’s testimony does not establish that the jury was inadequately instructed, where other, albeit more general, instructions for evaluating testimony are given to the jury. (People v. Wader (1993) 5 Cal.4th 610, 644-645.) Such is the case here.

While the jury was not specifically instructed that it could reject the entire testimony of a witness it found gave willfully false testimony, it was instructed that it could consider “anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witnesses.” (CALJIC No. 2.20.) It was also instructed that it could consider a witness’s prior inconsistent statements “not only for the purpose of testing the credibility of the witness but also as evidence of the truth of the facts as stated by the witness on that former occasion.” (CALJIC No. 2.13.) The jury was further instructed that: “[d]iscrepancies in a witness’ testimony or between a witness’ testimony and that of other witnesses, if there were any, do not necessarily mean that any witness should be discredited” (CALJIC No. 2.21.1); the “final test” in evaluating testimony is “the convincing force of the evidence” (CALJIC No. 2.22); and it “should give the testimony of a single witness whatever weight you think it deserves” (CALJIC No. 2.27).

Viewing the instructions as a whole, we conclude the trial court did not err in failing to instruct the jury sua sponte that it could disregard a witness’s entire testimony if it found that the witness was willfully false in one part of his or her testimony. As this court observed nearly a century ago, “It should certainly not be deemed of vital importance to tell the ordinary man of the world that he should distrust the statements of a witness whom he believes to be a liar.” (Reynolds v. E. Clemens Horst Co. (1917) 35 Cal.App. 711, 719.) We reiterated this point two decades later in the criminal context: “[A]ny person of common judgment would know without judicial instruction, that it is the part of wisdom and a duty on the part of jurors to carefully scrutinize with distrust or suspicion the entire testimony of a witness who has willfully perjured himself regarding a material fact in the case.” (People v. Kennedy (1937) 21 Cal.App.2d 185, 201.) These observations are equally true today.

IV

Defendant Was Not Prejudiced By The Prosecutor’s Alleged Misconduct

Defendant asserts “[t]he prosecutor’s improper remarks during closing argument constituted misconduct[,] influenced the jury[,] and denied [defendant] a fair trial.” In particular, he argues the prosecutor committed misconduct during his rebuttal argument by: “(1) asking the jury to draw improper inferences from . . . defendant’s exercise of [his] right to remain silent while the charges were pending; (2) asking that [an] improper inference of criminal disposition be drawn from defendant’s Nazi ‘artwork’ in a letter[;] and (3) misstating the reasonable doubt standard.”

“Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights--such as a comment upon the defendant’s invocation of the right to remain silent--but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”’ [Citations.]” (People v. Rundle (2008) 43 Cal.4th 76, 157.)

A

Comments On Defendant’s Exercise Of Rights

During his rebuttal, the prosecutor noted that defendant initially identified “Anthony Edwards and Kenny” as Smith’s assailants and that he failed to identify Marcus Crans as one of Smith’s assailants until trial. Referring to defendant’s failure to initially name Crans, the prosecutor then stated: “So the unanswered question is why sit in jail for two years before you tell us who did it?” Defense counsel objected to the statement as “[i]mproper argument,” and the trial court sustained the objection. On appeal, defendant claims the prosecutor violated the holding of Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] and committed prejudicial misconduct by commenting on “defendant’s exercise of his rights.” We disagree.

The prosecution violates the defendant’s due process rights if it uses evidence of a defendant’s post-Miranda silence for impeachment purposes at trial. (Doyle v. Ohio, supra, 426 U.S. at pp. 618-619 [49 L.Ed.2d at p. 98]; see also Greer v. Miller (1987) 483 U.S. 756, 763 [97 L.Ed.2d 618, 628].) However, Doyle is inapplicable where a defendant presents exculpatory testimony at trial that is inconsistent with his statements given post-Miranda. (Anderson v. Charles (1980) 447 U.S. 404 [65 L.Ed.2d 222].)

Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

In Anderson, the defendant was arrested for driving a stolen car that belonged to a murder victim. (Anderson v. Charles, supra, 447 U.S. at p. 404 [65 L.Ed.2d at p. 222].) At the time of his arrest and post-Miranda, he said he took the car from a street location. (Id. at p. 405 [65 L.Ed.2d at p. 224].) At trial, however, he testified he stole the car from a parking lot near the county jail. (Ibid.) The prosecutor cross-examined the defendant on his ability to fabricate the location where he obtained the car by questioning him about his ability to see a parking lot from the county jail. (Ibid.) The prosecutor then asked the defendant, “‘Don’t you think it’s rather odd that if it were the truth that you didn’t come forward and tell anybody at the time you were arrested, where you got the car?’” (Id. at p. 406 [65 L.Ed.2d at p. 225].) In determining Doyle was inapplicable to the facts of the case, the court explained: “The quoted colloquy, taken as a whole, does ‘not refe[r] to the [defendant’s] exercise of his right to remain silent; rather [it asks] the [defendant] why, if [his trial testimony] were true, he didn’t tell the officer that he stole the decedent’s car from the tire store parking lot instead of telling him that he took it from the street.’ [Citation.] Any ambiguity in the prosecutor’s initial questioning was quickly resolved by explicit reference to [the officer]’s testimony, which the jury had heard only a few hours before. The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.” (Anderson, at pp. 408-409 [65 L.Ed.2d at p. 227].)

The same is true here. The prosecutor did not refer to defendant’s exercise of his right to remain silent; he simply asked why, if defendant’s trial testimony were true, he did not identify Marcus Crans as one of Smith’s assailants when he was interviewed immediately after the incident. The statement was not designed to draw meaning from silence, but to highlight for the jury defendant’s inconsistent statements. Accordingly, Doyle does not apply to the facts of this case. (Anderson v. Charles, supra, 447 U.S. at p. 409 [65 L.Ed.2d at p. 227].)

B

Comment On The Jailhouse Note

At a pretrial hearing, the trial court stated that under Evidence Code section 352 it was “disinclined” to permit gang expert testimony regarding the jailhouse note.

During his closing argument, defense counsel said: “Let’s talk about this [jailhouse] note. . . . This is not a racial issue here. Lady is white. . . . But [the] prosecution . . . wants to put the spin on it that it is. Why do they want to do that? They want you to be prejudiced against [defendant]. Exactly what you are told not to do. But they want to get that in. . . . This guy has a swastika. And this and that. You’re the judge. You have to put all those things behind you. Why? What does it have to do with the case? Nothing. They’re trying to taint his image in front of you.”

In rebuttal, the prosecutor responded: “Now, prejudice. Stomp of the boot, one arm salute. Does that go to prejudice or does it go to an identification with an organization concerned with violence?” Defense counsel objected as “improper” and stated “[n]o evidence of that.” The trial court sustained the objection and instructed the jury to “disregard the last comment.” The prosecutor then referred to what he characterized as defendant’s “direct testimony” concerning the common meaning of a swastika and “it’s [sic] identification with what we all know about Nazi Germany.” Defendant objected to this statement as “totally improper” and challenged the prosecutor’s use of the term “direct testimony.” The trial court responded, “[i]t’s not rebuttal on anything” and directed the prosecutor to “move along.”

On appeal, defendant complains the prosecutor’s comments during rebuttal were an attempt to get the jury to draw an improper inference of a criminal or a violent disposition. He also argues the comments were inflammatory and violated the spirit of the court’s in limine ruling that it was disinclined to allow gang expert testimony on the meaning of the terms in the jailhouse note. The People counter that the prosecutor was merely responding to defense counsel’s argument that the prosecution was trying to prejudice the jury against defendant, and in any event, any error was harmless.

“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) While defendant objected to the prosecutor’s remark concerning the swastika as “totally improper,” he did not request the jury be admonished to disregard it. He thus forfeited the argument here. As we shall explain, defendant forfeited his challenge as to one of the statements, and in any event, any misconduct on the part of the prosecutor was harmless.

Although defendant did not request the court admonish the jury to disregard the prosecutor’s comment concerning prejudice and identification with an organization concerned with violence, we find the issue was preserved for review because the court nevertheless admonished the jury to disregard it.

In any event, defendant’s claim fails on the merits. The remarks were brief and comprised only a small portion of the prosecution’s argument. The jury was instructed to disregard the prosecutor’s remark, “Does that go to prejudice or does it go to an identification with an organization concerned with violence?” It was also instructed that it must decide the case on the facts and the law and not based on prejudice. (CALJIC No. 1.00.) We presume the jury followed these instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.) Moreover, the prosecutor’s remark concerning the swastika accurately summarized defendant’s testimony on cross-examination wherein he agreed a swastika commonly means “World War II Nazi Germany,” and defendant does not challenge the admission of that evidence here. Thus, assuming without deciding the remarks constituted misconduct, we find they did not so infect the trial with unfairness as to make the resulting conviction a denial of due process, and it is unlikely the jury would have reached a verdict more favorable to defendant had the remarks not been made. (See People v. Rundle, supra, 43 Cal.4th at p. 157.)

We note the phrase “organization concerned with violence” is ambiguous. For purposes of our analysis, we presume, as defendant appears to contend, that the phrase reasonably could be construed to mean an organization that perpetrates acts or supports the use of violence.

C

Discussion Of “Reasonable Doubt”

Finally, when discussing the meaning of reasonable doubt, the prosecutor said: “[T]his is not I think he did it. It’s I know. When you know something, you’re beyond a reasonable doubt when you know it. . . . [I] suggest, ladies and gentlemen, that if you know he did it then I met my burden.” Defendant objected as an “[i]mproper statement of the law” regarding reasonable doubt, and the trial court sustained the objection. On appeal, defendant again complains the prosecutor misstated the law concerning reasonable doubt. Defendant forfeited this challenge by failing to request a jury admonition. (See People v. Ochoa, supra, 19 Cal.4th at p. 427.) In any event, any misconduct by the prosecutor was harmless.

The jury was properly instructed on the meaning of reasonable doubt as follows: “Reasonable doubt 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 of the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of truth of the charge.” (CALJIC No. 2.90.) The prosecutor’s statement that when you “know,” as opposed to “think,” something is true, “you’re beyond a reasonable doubt” is not wholly inconsistent with that definition. When considered in context, it is clear the prosecutor was equating “know[ing]” with a high level of certainty, consistent with CALJIC No. 2.90. To the extent there was any confusion, the jury was further instructed to follow the law as given by the court and ignore contradictory statements by the attorneys. We presume “‘the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Morales, supra, 25 Cal.4th at p. 47.) Thus, even if the prosecutor misstated the law concerning reasonable doubt, defendant suffered no prejudice as a result.

V

The Possible Errors Identified Above, Whether Considered Individually Or In Combination, Do Not Warrant Reversal

Defendant contends the cumulative effect of the alleged errors discussed above in parts I, II, III, and IV of the Discussion denied him a fair trial. We did not identify any errors above. In some cases, we did not consider whether an error had been committed because we found any possible error was harmless. We likewise conclude the cumulative effect of those possible errors does not warrant reversal of the judgment. (People v. Geier (2007) 41 Cal.4th 555, 620.)

VI

Substantial Evidence Supports Defendant’s Conviction For Attempting To Dissuade A Victim, And Defense Counsel Was Not Ineffective In Failing To Move For Judgment Of Acquittal On That Count

Defendant contends under separate headings that: (1) defense counsel was ineffective for failing to move for judgment of acquittal on count IV -- attempting to dissuade a victim -- at the close of the prosecution’s case (§ 1118.1); and (2) there was insufficient evidence to support his conviction for that count. We shall dispose of the two contentions together since the standard of review for a motion for judgment of acquittal is similar to the standard of review for the claim that the evidence is insufficient to support the judgment. (People v. Mendoza (2000) 24 Cal.4th 130, 175.) In doing so, we conclude that at the close of the prosecution’s case, substantial evidence supported defendant’s conviction for attempting to dissuade a victim; thus, defense counsel was not ineffective in failing to move for judgment of acquittal on that count. We also reject defendant’s alternative argument that section 136.1, subdivision (a) is overbroad in violation of the First Amendment.

Section 1118.1 provides: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.”

To prevail on his claim that defense counsel was ineffective in failing to move for judgment of acquittal, defendant must demonstrate the motion would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876; People v. Scott (1997) 15 Cal.4th 1188, 1211.) “‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review.” (People v. Stevens (2007) 41 Cal.4th 182, 200.)

Section 136.1, subdivision (a)(2) prohibits anyone from “[k]nowingly and maliciously attempt[ing] to prevent or dissuade any . . . victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” While mere preparation is not enough (see People v. Sales (2004) 116 Cal.App.4th 741, 748), “[w]here a defendant has [the intent to affect or influence a potential witness’s or victim’s testimony or acts] and ‘performs an act that “go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action” . . ., the defendant may be convicted of criminal attempt.’ (People v. Toledo (2001) 26 Cal.4th 221, 230.)” (People v. Foster (2007) 155 Cal.App.4th 331, 335.)

Defendant argues that “[a]ll the prosecution proved in this case was preparation. . . . [¶] Direct movement toward the commission of the crime was not established. In fact[,] Deputy Heath testified that he did not know how the document came to be in Pod B. . . . Assuming that it was thrown or dropped there from someone in Pod A, it was not shown that the action was done by [defendant] or at his behest. . . . As such, the inference that he followed through on his original plan was speculative, depending on surmise.” We are not persuaded.

There was ample evidence in the prosecution’s case-in-chief from which the jury reasonably could infer the note was thrown or dropped by defendant or at his behest. Defendant clearly authored the note. The note referenced one of the victims by her first name (Kim), gave the street she lived on (Almond), and was signed with defendant’s nickname (Genester). At the time the note was recovered, defendant was housed in the A pod. The note requested a favor from someone housed in the adjoining B pod and was recovered in an area of the B pod that is next to the A pod. That the note or its message did not reach the intended recipient(s) or Smith is of no consequence. Because there was sufficient evidence to support a conviction for attempting to dissuade a victim, a section 1118.1 motion would have been fruitless at the close of the prosecution’s case-in-chief. Consequently, defendant was not deprived of his constitutional right to effective assistance of counsel. (See People v. Mattson, supra, 50 Cal.3d at p. 876; People v. Scott, supra, 15 Cal.4th at p. 1211.)

The evidence against defendant only increased following the prosecution’s case-in-chief. Significantly, defendant admitted writing the note and said he did so because he wanted his friends to persuade Smith to tell the truth.

Alternatively, defendant asserts that to the extent section 136.1, subdivision (a)(1) criminalizes “uncommunicated expression,” it is overbroad in violation of the First Amendment. In support of his assertion, he cites a number of cases considering the constitutionality of laws against making criminal threats. Referring to those cases, defendant argues “the First Amendment allows punishment of that which has come to be referred to as a ‘true threat,’ as defined by the cases we have surveyed. . . . [¶] . . . [Defendant] has not another case, save fro [sic] the facts of this case, where an uncommunicated expression was upheld as the basis for a conviction. The reason that no such case exists is because no such case could withstand scrutiny.” Our Supreme Court has found otherwise.

In Toledo,the court rejected the defendant’s claim the offense of attempted criminal threat violated the First Amendment. (People v. Toledo, surpa, 26 Cal.4th at pp. 233-234.) In doing so, the court observed “a defendant [who] takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed because the written threat is intercepted before delivery to the threatened person, . . . properly may be found guilty of attempted criminal threat.” (Id. at p. 231.) The court noted a conviction under that circumstance “will pose no constitutional problems” because the defendant “will be held criminally responsible only for speech that clearly is not constitutionally protected.” (Id. at p. 234.) Such is the case here. Asking Carter or Allison to instruct Couch to tell Smith “not to come to court anymore” so that defendant could “walk” is not protected speech, and thus, defendant’s conviction for attempting to dissuade a victim does not run afoul of the First Amendment.

VII

The Trial Court’s Finding That Defendant’s 1999 Conviction For Battery With Serious Bodily Injury Constituted A Serious Or Violent Felony Is Not Supported By Substantial Evidence

Defendant contends, and the People concede, there is no substantial evidence to support the trial court’s finding that his 1999 conviction for battery with serious bodily injury (§ 243, subd. (d)) qualified as a serious or violent felony within the meaning of the three strikes law and for purposes of the five-year enhancement statute. We agree.

“Under the three strikes law, a prior conviction is a ‘serious felony’ that counts as a strike for sentence enhancement purposes if it is a crime listed in section 1192.7, subdivision (c). (§ 667, subd. (d)(1).)” (People v. Bueno (2006) 143 Cal.App.4th 1503, 1507.) “A prior offense can also qualify as a strike if it is a violent felony under section 667.5, subdivision (c). (§ 667, subd. (d)(1).)” (Id. at p. 1507, fn. 2.) For purposes of the five-year enhancement, a prior conviction is a “serious felony” if it is a crime listed in section 1192.7, subdivision (c). (§ 667, subd. (a)(4).)

“The state has the burden ‘to prove beyond a reasonable doubt those alleged prior convictions challenged by a defendant.’ [Citation.] In reviewing the sufficiency of the evidence of the prior convictions, we determine ‘“ . . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt.”’” (People v. Jones (1995) 37 Cal.App.4th 1312, 1315; see also People v. Tenner (1993) 6 Cal.4th 559, 566–567.)

Here, the evidence submitted by the People consisted of the abstract of judgment, which reflected defendant was convicted in 1999 of “Force w/serious inj[ury]” pursuant to section 243, subdivision (d) and was sentenced to the upper term of four years in prison.

“Battery with serious bodily injury is not one of the crimes specified in section 1192.7, subdivision (c) as a ‘serious felony’” (People v. Bueno, supra, 143 Cal.App.4th at p. 1508), nor is it one of the crimes specified in section 667.5 as a “violent felony” (In re Jensen (2001) 92 Cal.App.4th 262, 268). Nevertheless, circumstances of a particular battery may bring it within section 1192.7’s and section 667.5’s catchall provisions. At the time of defendant’s conviction and now, section 1192.7, subdivision (c) provided that “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice” constituted a “serious felony.” (§ 1192.7, subd. (c)(8).) At the time of defendant’s conviction, section 667.5, subdivision (c)(8) provided that “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in [s]ection 12022.7 or 12022.9” constituted a violent felony. (former § 667.5, subd. (c)(8) [as amended by Stats. 2002, ch. 606, § 2].)

“In considering whether [defendant]’s prior offense was a serious [or violent] felony, we are bound by the rule that a record of a prior conviction establishes only the ‘least adjudicated elements of the offense.’” (People v. Bueno, supra, 143 Cal.App.4th at p. 1508, quoting People v. Rodriguez (1998) 17 Cal.4th 253, 261.) Section 243, subdivision (d) provides that the offense occurs “[w]hen a battery is committed against any person and serious bodily injury is inflicted on the person . . . .” Accordingly, “the bare fact that [defendant] was convicted for battery with serious bodily injury under . . . section [243, subdivision (d)] is insufficient to show he was convicted of a serious felony under section 1192.7, subdivision (c)(8)” or a violent felony under section 667.5, subdivision (c)(8). (People v. Bueno, supra,143 Cal.App.4th at p. 1508.) And the People concede the evidence submitted failed to establish defendant personallyinflicted the injury or that the victim was not an accomplice. Moreover, with respect to section 667.5, subdivision (c)(8), there is no indication the battery was “charged and proved as provided for in [s]ection 12022.7 or 12022.9.”

Accordingly, there is no substantial evidence defendant’s 1999 conviction for battery with serious bodily injury qualified for the three strikes sentencing or the five-year enhancement, and the trial court’s findings to that effect must be reversed. To the extent defendant suggests the prosecution is barred from retrying the prior offense allegation, he is mistaken. The prosecution may elect to retry the matter of the 1999 prior conviction provided it has additional evidence. (People v. Franz (2001) 88 Cal.App.4th 1426, 1455.)

VIII

Defendant Is Entitled To One Additional Day Of Presentence Custody Credit

Finally, defendant contends, and the People concede, he is entitled to one additional day of presentence custody credit. We agree.

“In all felony and misdemeanor convictions, . . . when the defendant has been in custody, . . . all days of custody . . . shall be credited upon his or her term of imprisonment . . . .” (§ 2900.5, subd. (a).)

Here, defendant was in custody from July 13, 2003, until his sentencing on August 26, 2005. Thus, he is entitled to 776 days of actual custody credit, not 775, the number used by the trial court. We shall modify the judgment accordingly.

DISPOSITION

The trial court’s finding that defendant’s 1999 conviction for battery with serious bodily injury qualified as a serious or violent felony within the meaning of the three strikes law and for purposes of the five-year enhancement is reversed. The sentence is vacated, and the matter is remanded for resentencing or (at the People’s election) retrial on the issue of defendant’s 1999 conviction for battery with serious bodily injury consistent with this opinion. In either case, the trial court is directed to award defendant one additional day of presentence custody credit, for a total of 892 days (776 actual days and 116 conduct days). The judgment is otherwise affirmed.

We concur: DAVIS, Acting P.J., HULL, J.

All further statutory references are to the Penal Code unless otherwise indicated.


Summaries of

People v. Hall

California Court of Appeals, Third District, Yuba
Jul 22, 2008
No. C050642 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Hall

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EUGENE VIRGIL HALL, Defendant and…

Court:California Court of Appeals, Third District, Yuba

Date published: Jul 22, 2008

Citations

No. C050642 (Cal. Ct. App. Jul. 22, 2008)