Opinion
A128609 Marin County Super. Ct. No. SC162942
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. GERARDO RAMIREZ LARIOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Gerardo Ramirez Larios appeals from a judgment convicting him of two counts of dissuading a witness from giving testimony in his prior murder trial. He contends there is insufficient evidence to support the convictions. We shall affirm.
Factual and Procedural History
On June 12, 2007, defendant was involved in a fatal automobile accident which resulted in the death of his 16-year-old passenger. Following one trial that ended in a hung jury, defendant was retried and ultimately convicted of second degree murder and gross vehicular manslaughter while intoxicated, with prior convictions for driving under the influence. (Pen.Code, §§ 187, subd. (a), 191.5, subds. (a), (d); Veh.Code, § 23152, subd. (b).) His conviction was recently upheld by Division One of this court. (People v. Larios (April 1, 2011, A125388) [nonpub. opn.].)
All statutory references are to the Penal code unless otherwise noted.
On June 10, 2009, defendant was charged in the present action with one count of conspiracy to conceal and tamper with evidence (§§ 135, 182, subd. (a)(1)); three counts of attempting to dissuade a witness from testifying at his first trial (§ 136.1, subd. (a)(2)); and destroying evidence (§ 135). The information alleged that the three counts of attempting to dissuade a witness were serious felonies within the meaning of section 1170.12, subdivisions (a), (b), and (c) and section 1192.7, subdivision (c)(37).
One count of attempting to dissuade a witness was dismissed by the court prior to trial.
At trial, the parties stipulated to the following facts regarding defendant's prior trials: "The first murder trial of Gerardo Ramirez Larios . . . began on November 11, 2008, and ended on December 22nd, 2008. The trial ended in a hung jury and a mistrial was declared on December 22nd, 2008. [¶] . . . The defense in that case filed a motion to dismiss the case based on the loss of the passenger side door of the pickup truck in question on September 2nd, 2008, prior to commencement of the first trial. The defense motion was denied . . . . [¶] . . . The second murder trial of Gerardo Ramirez Larios . . . began on March 16, 2009, and ended on April 20th, 2009. The jury unanimously found the defendant Gerardo Ramirez Larios was guilty of murder. [¶] . . . The defense in that case filed a renewed motion to dismiss the case based on the loss of the passenger side door of the pickup truck in question . . . , prior to the commencement of the second trial. This motion was withdrawn by the defense prior to the commencement of the second trial." Defendant's defense in both trials was that he was the passenger and the victim was the driver at the time of the collision.
The following evidence was admitted at trial:
On June 12, 2007, when police officers arrived at the scene of the accident, rescue personnel had removed the passenger side door from defendant's truck. At some point that evening, the vehicle was towed to a private yard and later to the police station. The passenger door was not transported with the truck. When officers returned to the accident site in the days following the accident, they did not remember seeing the door. They did not look for the door, however, because they did not know that it was missing. A defense investigator recalled seeing the door when he visited the scene on June 15, and photos taken that day show the passenger door at the crash site next to the newly replaced utility pole. When defendant's accident reconstruction expert went to the site on June 16, the door was no longer there. The door was never recovered.
In defendant's first trial, defendant's expert testified that the missing passenger door was vital because it might have contained evidence, including blood stains, that would have established who the passenger was at the time of the accident.
Nacole Borg von Gehr is a close friend of defendant. She lives near the site of the accident and was at the scene when the police arrived on June 12. She testified that she visited a memorial at the site daily in the week after the accident and saw the door on each visit. Sometime around June 16, she helped defendant's wife Rose remove the door from the accident site. They took the door to her home where they examined it for signs indicating who the passenger was. There may have been some blood on the door, but they did not see anything that indicated to them who was driving the truck. Rose left with the door and Borg von Gehr did not know what happened to it after that. Borg von Gehr did not realize the importance of the door until the end of defendant's first trial. She did not speak to police about the door until after the first trial, when police discovered letters written to her by defendant in which he discussed the missing door.
In one letter written to Borg von Gehr in November 2007, defendant wrote, "My attorney came to talk to me today and told me that the DA wants a trial date set A.S.A.P. and he does not have any offers. [¶] I asked her about the door and she [said] she was going to file a motion for the door and hope that will give us more time. Where ever you and Rose put that door I hope you put it away where no one can find it. Will you please [explain] to my sister [Debra Gray] about the door and tell her that we need that door for evidence but we don't want it to be found. Only you, Rose, Deb know where it is. I don't know or care where it is but it must not be found. I did not tell my attorney what [happened] to that door so if she wants it she's going to have to look very hard for it. If my attorney calls you and says anything about that door you do not know anything ok. When you talk to Deb and only if she is alone and no one but you and her tell her not to mention that door to no one and that you and Rose don't know anything about it [either] please. [¶] I don't know if Deb or Rose have [said] anything to any one but I hope they have not. So can you please talk to Deb the first minute you get. I would really [appreciate] it." In another letter sent to Borg von Gehr in December of 2008, defendant discussed the ongoing first trial and expressed concern that the prosecutor "will find out what happened to the door."
The jury found defendant guilty of two counts of attempting to dissuade a witness and not guilty on the remaining counts. The court sentenced defendant to three years eight months in prison, consecutive to the 15-year-to-life sentence imposed on the murder conviction. Defendant filed a timely notice of appeal.
Discussion
"[T]he Penal Code . . . establishes a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses." (People v. Fernandez (2003) 106 Cal.App.4th 943, 948.) In Fernandez, the court held that the different offenses should be strictly construed in their scope. The court explained, "The distinction between the offenses is not merely a semantic one. The Legislature has taken pains to distinguish the various methods of influencing a witness and to establish a range of punishment for those offenses that reflects different levels of culpability." (Id at p. 950.) "[G]enerally speaking, the Legislature views an attempt to alter what a witness says in court as less culpable than an attempt to prevent a witness from appearing at all or from taking steps that are predicate to the prosecution's filing of an action." (Id. at p. 951.)
In this case, defendant was convicted of two counts of violating section 136.1, subdivision (a)(2), which prohibits a person from "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." Section 136.1, subdivision (a)(2) punishes efforts to prevent a witness from appearing at trial altogether. (People v. Fernandez, supra, 106 Cal.App.4th at pp. 949-950; People v. Womack (1995) 40 Cal.App.4th 926, 931.) The jury was properly instructed that to convict defendant, it must find among other things that "defendant maliciously tried to prevent or discourage [Borg von Gehr and Gray]from attending or giving testimony at the People versus Gerardo Larios" and that "defendant knew he was trying to prevent or discourage [them] from attending and giving testimony at trial and intended to do so."
This offense may be contrasted with section 137, which punishes efforts to influence the content of testimony at trial or information given to law enforcement during the course of an investigation. (People v. Fernandez, supra, 106 Cal.App.4th at pp. 949-950; People v. Womack, supra, 40 Cal.App.4th at pp. 930-931.) A defendant may, however, harbor dual intents that bring him within the meaning of more than one statutory provision. (See Womack, pp. 930-931 [theoretically, the defendant could have intended to kill the witness, bringing his conduct within the meaning of section 136.1 and, secondarily, intended to influence the witness's testimony should the attempt to kill him fail, which would have brought defendant within the meaning of section 137].)
Defendant contends that there is no substantial evidence that he attempted to dissuade the witnesses from testifying at his first trial. He acknowledges that his November letter can be construed as an attempt to dissuade Borg von Gehr from telling anyone, including the police and the attorneys, about the missing door. He argues that "the context of his asking her not to tell anyone about the door was that he did not want the door to be discovered as an object of further investigation in the case. This cannot reasonably be construed as a request that she refuse to go to court if summoned as a witness or that she refuse to testify."
A violation of section 136.1 does not require that a defendant say "don't testify" or words to that effect. (People v. Thomas (1978) 83 Cal.App.3d 511, 514.) "The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end." (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) If a defendant's words or actions support the reasonable inference that he attempted to induce a person to withhold testimony, a conviction of dissuading a witness is proper. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344, superseded on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.)
Contrary to defendant's argument, his November 2007 letter is broad enough to include an attempt to dissuade the witnesses from testifying at trial. Although the letter discusses the missing door in the context of pre-trial motions and trial scheduling, it is reasonable to imply the request that these witnesses maintain their silence through trial. The December 2008 letter, written during the course of the first trial, confirms this intent. As noted above, the defense that was presented at the first trial, before the letters from defendant were discovered, was based in part on the contention that the prosecution had failed to preserve critical evidence. Defendant knew, however, that the investigators did not lose the door as he claimed, and that his friends and family members had taken it. If that information were to have become known, as it did before the second trial, he could not have made such an argument. Because these witnesses had no relevant testimony to offer other than concerning the whereabouts of the missing door, defendant's attempt to keep them from disclosing who had taken the door can reasonably be construed as an attempt to dissuade them from testifying at the trial altogether. Defendant was not simply attempting to influence the content of their testimony.
Defendant also argues that his conviction must be reversed as to the count involving Gray because "there is simply no evidence that [he] did any act in regard to Ms. Gray in order to bring him within the scope of the statute." Section 136.1, however, "neither restricts the means a defendant selects to commit the offense, nor does it require that defendant personally deliver the message to the witness. A threat need not actually deter or reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness." (People v. Foster (2007) 155 Cal.App.4th 331, 335.) Defendant's November letter, which asked Borg von Gehr to convey a request to Gray that she not speak to anyone about the door, is sufficient to support his conviction on the count involving Gray.
Disposition
The judgment is affirmed.
Pollak, Acting P. J. We concur: Siggins, J. Jenkins, J.