Opinion
B293207
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL MARTINEZ, Defendant and Appellant.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA142260) APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed as modified. Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Manuel Martinez (defendant) appeals from the judgment entered after he was convicted of attempted murder, false imprisonment, intimidation of a victim or witness, and other felonies. He contends that his conviction of false imprisonment was unsupported by substantial evidence, that Penal Code section 210.5 is unconstitutionally vague, that there was insufficient evidence of witness or victim intimidation, and that the prosecution was required to collect from him and preserve a blood sample. Respondent asks that we correct the judgment by adding court security and court facilities assessments. Finding no merit to defendant's contentions we affirm the judgment and modify as requested.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
Defendant was charged in a 15-count amended information with six counts (counts 1, 2, 7, 8, 9, and 10) of attempted murder in violation of sections 664 and 187, subdivision (a), with the special allegations that the attempts were willful, deliberate and premeditated within the meaning of section 664, subdivisions (e) and (f), and that defendant attempted to murder a peace officer. In count 11, defendant was charged with false imprisonment of a hostage in violation of section 210.5, and in count 12, defendant was charged with dissuading the same witness, Joaquin L. by force, threat and implied threat in violation 136.1, subdivision (c)(1). Count 13 alleged possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). Finally, counts 14 through 19 alleged assault on a peace officer with a semiautomatic firearm in violation of section 245, subdivision (d)(2).
The amended information did not contain counts 3, 4, 5, or 6.
It was alleged in counts 1 and 2, that defendant personally and intentionally used and discharged a firearm in committing the attempted murders, and personally discharged a firearm causing great bodily injury to Deputy Sheriff Christopher Allende (Deputy Allende) and Deputy Sheriff Chad Vandenberg (Deputy Vandenberg) respectively, within the meaning of section 12022.53, subdivisions (b), (c), and (d). As to counts 14 through 19, it was alleged that defendant personally used a firearm in the commission of the assault offenses, within the meaning of section 12022.53, subdivision (b).
A jury acquitted defendant of assault on a peace officer (Deputy Vandenberg) in count 15, and found not true the special allegation in count 2 that defendant attempted to murder a peace officer. The jury found defendant guilty as charged of the remaining counts and found true all other special allegations.
On October 4, 2018, the trial court sentenced defendant to a total prison term of 221 years to life, selecting count 11 as the base term and imposing the high term of eight years. The court then imposed consecutive sentences as follows: as to count 1, 15 years to life, enhanced by 25 years to life for the personal firearm discharge causing great bodily injury; as to count 2, seven years to life, plus 25 years to life due to the firearm enhancement with great bodily injury; as to each of counts 7 through 10, 15 years to life plus 20 years to life due to the personal firearm discharge, and as to count 12, one year, calculated as one-third the middle term of three years. The court imposed but stayed sentences on the remaining counts pursuant to section 654 and struck the remaining firearm enhancements.
We observe that the proper sentence for an attempted murder which is willful, deliberate and premeditated as is the case here, is "imprisonment in the state prison for life with the possibility of parole," (§ 664, subd. (a)), rather than the seven years to life imposed. We therefore direct the error in the abstract of judgment be corrected.
Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
On June 23, 2016, Deputy Allende was assigned to motorcycle enforcement and was working in uniform with 15 other deputies at a checkpoint designed to identify drivers under the influence of alcohol or drugs (DUI checkpoint) at Lakewood Boulevard and Oak Street. He was responsible for maintaining traffic cone patterns, the speed of cars entering the checkpoint, and monitoring for suspicious activities. At about 10:45 p.m., Deputy Allende noticed defendant's truck make a right turn onto Laurel Street, knocking over traffic cones, and then make a left turn onto Lisa Street, which Deputy Allende knew to be a cul-de-sac. Deputy Allende followed defendant thinking he might be under the influence because he attempted to evade the checkpoint. Deputy Allende entered Laurel Avenue with his motorcycle's lights off, and once on Lisa Avenue he pulled up about 15 feet behind defendant's parked vehicle and turned on his flashing red and blue lights. Defendant turned his head over his left shoulder, looked in Deputy Allende's direction, and then attempted to make a U-turn. Deputy Allende had to make a U-turn at the same time to avoid a collision. Defendant stopped his car, and pointed a semi-automatic gun at Deputy Allende from the open window. Defendant then fired three or four shots at the deputy. One bullet struck Deputy Allende's watch, which he wore on his left hand, and another struck his right arm. Deputy Allende jumped off his motorcycle as defendant continued to fire, striking the left side of the deputy's bullet proof vest just below his ribs. Deputy Allende ran behind a parked vehicle, unholstered his gun with his left hand, and returned fire. Defendant then drove to the end of the cul-de-sac, got out, ran to a wall which he hopped over, and disappeared from sight. Deputy Allende obtained the truck's license number, radioed for assistance, giving a description of defendant. Deputy Allende suffered an open fracture of his right ulna, and although his watch absorbed much of the impact to his left wrist, it swelled to the size of a golf ball. At the time of trial, Deputy Allende had a plate and screws in his right arm. He still had nerve damage in his right hand as a result of the gunshot wounds and had to learn to use his gun with his left hand.
Deputy Vandenberg was wearing civilian clothes and working undercover in the area, driving an unmarked pickup truck. When he heard the officer-shot broadcast, he drove to Oak Street near the DUI checkpoint, parked his truck and saw two or three black-and-white patrol cars parked further down the street. As Deputy Vandenberg was putting on his gear by the truck's tailgate, he turned around and saw defendant running toward him. Deputy Vandenberg yelled, "Sheriff's Department. Let me see your hands." When defendant was within five to ten feet of the deputy, defendant fired his gun and a bullet struck just below Deputy Vandenberg's upper right clavicle. After he fell to the ground, unable to use his right hand, Deputy Vandenberg saw defendant run west on Oak Street. Deputy Vandenberg suffered a broken collarbone, nerve damage, a bruised lung, and a cracked rib. At the time of trial, he had limited strength and use of his right hand.
Upon hearing gunfire coming from the area of Lisa Avenue, Deputy Michael Abbot, along with other sheriff department personnel, ran to Oak Street where they heard two more volleys of gunfire. Deputy Abbot then saw defendant running toward them, holding a gun. Defendant raised his gun and fired it at the deputies, who returned fire until losing sight of defendant as he ran into a driveway.
Steven Munoz, a former law enforcement officer who lived nearby was awakened by his dog's loud barking. Armed with his .45-caliber pistol, he went into the hallway, where he saw his son pointing a shotgun at defendant. Defendant repeatedly said, "They are after me. They are after me. They are chasing me. I've got to hide," and, "I need for you to let me stay here." Munoz repeatedly refused and told defendant he had to leave. Munoz did not see defendant's gun, but could see a bulge at defendant's waist. The hallway was dimly lit, and Munoz was focused on defendant's hands, but he could see that defendant's eyes were "wobbling."
Munoz walked defendant out of the house where Munoz's three trucks were visible. "I need your keys. I want your keys. I need to use the truck. I need to get away." Defendant crouched down by the front of a truck and then started running as Munoz heard gunfire. Soon there were helicopters overhead, and as deputies were placing the wounded Deputy Vandenberg into the back of his truck, defendant ran to the driveway of another house. Munoz heard more gunfire.
Nancy Rodriguez testified that at the time of the shootings she lived with her parents near Oak Street. The family's tenant, Joaquin Lopez, lived in the garage. Rodriguez was in her room when she heard what sounded like fireworks, helicopters overhead, the sound of glass shattering, and her mother screaming from the bathroom in the back of the house. When Rodriguez reached the bathroom and opened the door, she saw her mother screaming and defendant's face in the window. In Spanish defendant said, "They're chasing me. Help me." Rodriguez pulled her mother out of the bathroom and they ran outside, where they found her father in the driveway. All three then ran to the police officers they saw near the end of the street. Rodriguez told the officers what had happened and that their tenant was still inside.
The prosecutor presented photographs, including an aerial photograph, which showed the location of Rodriguez's house, but the exhibits were not transmitted to this court for review. We assume from the testimony that the Rodriguez residence was close to Oak Street.
Lopez was asleep with the lights on when he was awakened by a man entering his room in the garage through an unlocked door. Defendant quickly turned off the lights as he entered. Lopez saw that defendant was sweating and nervous, and heard helicopters overhead. Defendant said, "They're following me," and told Lopez to give him a shirt. Defendant then saw a shirt, put it on, and placed his own shirt under the bed. Defendant placed something that Lopez could not see under the mattress, though he heard a metallic sound. Lopez did not have a gun in his room.
Defendant then lay on the bed, looked at Lopez, sitting on the edge of the bed, and said, "Stay still. Nothing's going to happen. But if you move, something could." Defendant also said, "If you don't do anything, everything will be fine." Lopez was frightened and remained seated on the edge of the bed and did not try to leave for the next five hours. At one point Lopez moved, and defendant said, "Where are you going? What are you doing?" Defendant watched Lopez, including when defendant got up to go to the bathroom. Lopez heard the police outside calling his name through a loudspeaker. When defendant fell asleep, Lopez quickly went to the door. Though defendant woke up and came after him, Lopez was able to exit before defendant reached him.
Defendant remained inside and ignored commands to come out until about 7:00 a.m., when the Sheriff's Department SWAT team deployed a flash-bang device and then tear gas to force him out of the garage. Deputies later searched the garage and recovered defendant's semi-automatic handgun from the bathroom.
When defendant came outside, he was arrested and taken to a hospital where he was examined by Dr. Mahmoud Nemazee, who detailed the exam in his report. Dr. Nemazee took a social history, and noted: "The patient denies use of tobacco, alcohol or illicit drug use." Dr. Nemazee determined that defendant had no gunshot wounds or other serious injuries, and diagnosed defendant with hypertension, atypical chest pain, and anxiety disorder. Dr. Nemazee looked for symptoms that defendant was under the influence of an intoxicating substance, but did not remember whether he had seen any. He testified that he would have noted such an observation, and there is no such note in his report. Believing he had no authority to do so, Dr. Nemazee did not draw defendant's blood. A later search of defendant's vehicle did not yield any drugs, narcotics, or drug paraphernalia.
Defense evidence
Defense investigator Nick Morrow, a drug recognition expert who was formerly employed by the Sheriff's Department, evaluated the police reports in this case, and found facts which suggested to him that defendant could have been under the influence of some drug. He explained that it was common for a person who was under the influence to try to avoid a DUI checkpoint, and that sober people normally would not attempt to evade or shoot at a police officer. Morrow noted that Munoz, a retired police officer, had seen defendant's eyes "bouncing" while defendant was in Munoz's home, which was an indication that defendant could have been under the influence. Defendant's behavior throughout the night was bizarre, which might also indicate he was under the influence, depending on the drug. Increased adrenaline could mimic drug influence. Morrow was unable to opine whether defendant was under the influence that night because there had been no field sobriety tests or blood work performed on defendant. He testified, however, that observing behavior is normally more important than blood testing, depending on the drug, and some drugs can stay in the system for several days.
DISCUSSION
I. Substantial evidence (count 11)
Defendant contends that substantial evidence did not support his conviction in count 11, of false imprisonment of a hostage, because there was no evidence that he used force or increased the risk of harm to Lopez.
When a criminal conviction is challenged as lacking evidentiary support, "the court must review the whole record in the light most favorable to the judgment below 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. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]" (Ibid.) We do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'"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.]"' [Citation.]" (People v. Kraft, at p. 1054.)
"[B]ecause 'we must begin with the presumption that the evidence . . . was sufficient,' it is defendant, as the appellant, who 'bears the burden of convincing us otherwise.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Reversal on a substantial evidence ground "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." False imprisonment is a felony if it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) Section 210.5 provides for greater punishment if the false imprisonment was committed "against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield . . . ."
"'"Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. The wrong may be committed by acts or by words, or both, and by merely operating upon the will of the individual or by personal violence, or both. . . ."' [Citation.]" (People v. Zilbauer (1955) 44 Cal.2d 43, 51.) "'An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. Threats can be exhibited in a myriad number of ways, verbally and by conduct.' [Citation.]" (People v. Thomas (2017) 15 Cal.App.5th 1063, 1073-1074.) A violation of section 210.5, requires proof that the defendant was under threat of imminent arrest. (People v. Gomez (1992) 2 Cal.App.4th 819, 825.)
The trial court instructed the jury with CALCRIM No. 1271 as follows: "The defendant is charged in count 11 with false imprisonment of a hostage. To prove the defendant is guilty of this crime, the people must prove that: number one, defendant faced a threat or risk of imminent arrest; number two, the defendant restrained or confined another person by force or by threat to use force; number three, the defendant intended to protect himself against the threat of imminent arrest by restraining the other person; number four, defendant made the other person stay or go somewhere against that person's will; and number five, the defendant either substantially increased the risk of harm to the restrained or confined person or intended to use that person as a shield. An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. False imprisonment does not require that the person restrained be confined in jail or prison."
Defendant concedes that when he was in Lopez's room he faced a threat or risk of imminent arrest. He also acknowledges that "menace" may be an implied threat of force. (See People v. Thomas, supra,15 Cal.App.5th at pp. 1073-1074.) Although the prosecutor's theory was that defendant's words and conduct amounted to an implied threat of harm, he did not present evidence or argue that defendant used physical force or explicit threats. Defendant nevertheless devotes much of his argument to demonstrating the lack of evidence of physical force or violence and explicit threats of violence. Indeed, defendant sets forth a string citation to no fewer than 16 false imprisonment cases in which the evidence included the use of a weapon or physical touching, apparently to no other purpose than to illustrate and emphasize that such facts were not in evidence here. Menace does not require the use of a weapon, an express threat, or physical contact. (People v. Islas (2012) 210 Cal.App.4th 116, 126-127 (Islas).) Moreover, in reviewing the sufficiency of evidence, we focus on the evidence presented rather than on evidence that did not exist. (People v. Story (2009) 45 Cal.4th 1282, 1299.)
Defendant also devotes much of his argument to pointing out inferences which could have been drawn to defeat count 11, and to rejecting those which reasonably support the verdict. Defendant contends that Lopez's testimony did not provide any evidence of menace, because the words spoken to Lopez must be construed as "disavowing any intent to harm Lopez," because the words were not accompanied by "explicit conduct, such as brandishing a pistol or knife," and because Lopez did not try to leave the garage, even though defendant got up and went to the bathroom twice.
When viewed in the light most favorable to the judgment, rather than the light most favorable to defendant's arguments, ample evidence demonstrates that defendant engaged in conduct and words from which the jury could reasonably infer implied threats of violence. Lopez was asleep with the lights on when he was startled awake by defendant, a stranger entering his home at night, looking nervous and sweaty. The stranger quickly turned off the lights and said, "They're following me." As helicopters were heard overhead, defendant's words would convey to anyone in that situation that "they" were law enforcement officers in search of a crime suspect, and the person who had just invaded Lopez's home was that suspect. Next, defendant demanded a shirt, helped himself to Lopez's clothing, and then placed his own shirt under the bed, in an apparent effort to hide it. Defendant also placed something metallic under the mattress where Lopez sat, before seating himself on the same mattress. While continuously staring at Lopez, defendant said, "Stay still. Nothing's going to happen. But if you move, something could"; and, "If you don't do anything, everything will be fine." (Italics added.) The jury could reasonably infer that, far from disavowing any intent to harm Lopez as defendant claims, defendant intended his words to be a threat to harm Lopez if he moved. This inference was strengthened by Lopez's testimony that when he did move, defendant said, "Where are you going? What are you doing?"
Defendant suggests in a footnote that the words, "where are you going" were never spoken, because Lopez quoted defendant in response to the prosecutor's question whether Lopez previously said that defendant had spoken those words, and defendant argues that there was no such previous testimony. We need not address arguments made in footnotes. (People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn.5.) However, we note that Lopez did not testify that he had previously testified that defendant had spoken the words, but that he previously said it. The prosecutor did not ask where or to whom Lopez said the words, and the defense did not object or follow up. Defendant also suggests that when defendant asked, "Where are you going," he must have done so when Lopez finally got up to leave, because Lopez also testified that he never got off the bed or tried to leave during the five hours defendant was there with him. Lopez testified that defendant did not say anything as Lopez went to the door. We do not evaluate the witness's credibility. (See People v. Jones (1990) 51 Cal.3d 294, 314.) Moreover, if defendant had in fact said those words as he chased Lopez to the door, this would have strengthened the inference that defendant intended his stares and warnings to be construed as threats in order to compel Lopez to stay.
The facts of this case bear many similarities to those in Islas. There, the defendants, two unarmed gang members with visible gang tattoos, ran from the police into an apartment building, climbed up a ventilation shaft, and entered a studio apartment occupied by a resident and her four children. One defendant put his finger to his mouth, told the resident to hide them from the police, while the other turned off the lights, and both defendants said they were not going to harm her, which she did not believe. She huddled in fear with her family for 15 minutes with the defendants just six feet away, one standing and one sitting on a couch, before the police rescued them. (Islas, supra, 210 Cal.App.4th at pp. 119-121.) Although the defendants used no weapons, did not touch the victims, and made no express threats, the court found sufficient evidence to support a finding of false imprisonment by menace. (Id. at p. 119.)
We reject defendant's inference that Lopez's failure to attempt an escape meant that defendant's words and behavior did not convey an implied threat of harm. Lopez certainly understood the threat and felt compelled by it to stay where he was for five hours, feeling frightened about what defendant might do to him. Contrary to defendant's claim that Lopez's subjective fear was irrelevant to the jury's determination, "a jury properly may consider a victim's fear in determining whether the defendant expressly or impliedly threatened harm." (Islas, supra, 210 Cal.App.4th at p. 127.)
Defendant also claims that Lopez's testimony that he never saw a gun and that defendant went to the bathroom twice indicated that there was no implied threat keeping Lopez in place while defendant was in the bathroom. Defendant explains that it must be inferred that either the gun remained under the mattress when he went to the bathroom, because Lopez would have seen it otherwise, or defendant took it with him and left it in the bathroom, because it was later found there. Defendant's inferences do not reasonably arise from the evidence, because there was no evidence of when the gun was placed in the bathroom or whether the lighting in the darkened room would have made the gun visible. We do not evaluate the credibility of Lopez's testimony that he never saw the gun and that defendant continued to stare at him when he went to the bathroom and returned. (See People v. Jones, supra, 51 Cal.3d at p. 314.) Moreover, we reject the apparent presupposition in defendant's argument that while defendant was in the bathroom he was too far from Lopez to carry out his implied threat. The evidence showing Lopez's room, the location of the bathroom, and perhaps the proximity of the toilet to the bed, was presented in photographs admitted as prosecution exhibits which have not been transmitted to this court. It is defendant's burden to provide an adequate record for review. (People v. Delgado (2017) 2 Cal.5th 544, 563 & fn. 12.) It is also defendant's burden to affirmatively demonstrate error, which is never presumed from a silent record. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Defendant's conclusion that such circumstances could not have been construed as threatening is thus speculative. We do not presume from defendant's speculative argument that defendant's constant staring could not have continued to convey an implied threat while he was in the bathroom.
Defendant also contends that, assuming there was otherwise sufficient evidence of false imprisonment, there was no evidence that the false imprisonment substantially increased the risk of harm to Lopez, a required element of section 210.5. Defendant urges a comparison with the approach relating to aggravated kidnapping taken in People v. Daniels (1969) 71 Cal.2d 1119, 1139, to construe the phrase, "substantially increases the risk of harm to the victim," as requiring a substantially increased risk over and above what is necessarily present in the underlying crime itself. Defendant suggests that the "mere act" of invading the victim's home after a shootout with the police and keeping the victim there for five hours while the police surround the home is merely incidental to any false imprisonment, and does not increase the risk more than simply over and above the risks of daily life. Defendant also argues that the risk that Lopez would be caught in the crossfire between defendant and police was minimal, inherent in the crime, and "presupposed by the statute."
We disagree, and have no trouble finding the increased risk of harm in the circumstances presented here. We reject defendant's apparent presupposition that false imprisonments ordinarily take place at the victim's dwelling, or that they routinely begin with the perpetrator's shootout with law enforcement. An intruder's unauthorized entry into an occupied dwelling at night while the occupant is asleep and thus particularly vulnerable, is potentially extremely dangerous. (See People v. Cruz (1996) 13 Cal.4th 764, 775-776 [residential burglary]; People v. Villalobos (2006) 145 Cal.App.4th 310, 317 [same]; People v. Escudero (1979) 23 Cal.3d 800, 810-811 [justifying warrantless entry and arrest].) And here, defendant was armed. "A firearm substantially increases the risk of harm attendant to the commission of any crime." (People v. Heston (1991) 1 Cal.App.4th 471, 478 [construing section 12022.4, furnishing a firearm to another for the purpose of committing a crime].) The danger that defendant would use his gun on Lopez or cause Lopez to be caught in the crossfire during a shootout was not minimal, as defendant was armed with a loaded firearm and had already shown a willingness to shoot police officers to avoid arrest. Nor was it merely incidental to the false imprisonment, as defendant did not accomplish the false imprisonment with the use of the gun and its use was not a necessary element of the crime. (See People v. Thomas, supra, 15 Cal.App.5th at pp. 1073-1074; Islas, supra, 210 Cal.App.4th at p. 127.)
False imprisonment can occur over a short period of time. (Cf. Islas, supra, 210 Cal.App.4th at p. 119 [15 minutes].) Lopez's ordeal lasted five hours, a substantial period of time. It follows that every hour that passed was an additional hour of increased risk of harm to Lopez. Finally, if we compare the increased risk element to that of aggravated kidnapping as defendant asks, we must note that the increased risk of harm may be an increased risk of psychological harm. (People v. Nguyen (2000) 22 Cal.4th 872, 881-882.) Lopez had a panic attack and was so frightened that he felt he could not move. Clearly each hour that passed was an hour of increased risk of psychological harm as well as physical harm. We conclude the evidence was sufficient to permit the jury to conclude beyond a reasonable doubt that the circumstances created by defendant substantially increased the risk of harm to Lopez.
II. Constitutional challenge to section 210.5
Defendant contends that section 210.5 is so vague and ambiguous that he was denied due process. In particular, defendant challenges the statute's term calling for greater punishment when defendant's conduct "substantially increases the risk of harm to the victim." He argues that the phrase creates a "standard [that] is unconstitutionally vague in that it requires the trier of fact to speculate as to some idealized form of criminal conduct without a fixed mooring and driven only by the waves of subjective impression."
"The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of 'life, liberty, or property without due process of law,' as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7)." (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) "All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. [Citations.]" (Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481, 484.)
Defendant relies on Johnson v. United States (2015) 576 U.S. ___ (Johnson), and Sessions v. Dimaya (2018) 584 U.S. ___ (Dimaya), arguing that the reasoning of the two cases applies equally to the "substantial risk of harm" clause of section 210.5. In Johnson, the United States Supreme Court struck down as unconstitutionally vague what is known as "the residual clause" of the Armed Career Criminal Act (ACCA), title 18 United States Code section 924(e)(2)(B). The residual clause imposed enhanced penalties for those with prior convictions of a "violent felony," which it defined in subparagraph (ii) as one that "'is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.' [Citation.]" (Johnson, at pp. 2555-2556.) The court found that the italicized phrase in the residual clause left "grave uncertainty about how to estimate the risk posed by a crime" as it tied "the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." (Id. at p. 2557.)
In Dimaya, the Supreme Court extended its reasoning in Johnson to language in section 16(b) of title 18 of the United States Code, in which the Immigration and Nationality Act defines "crimes of violence" for purposes of rendering aliens removable for a prior conviction of an aggravated felony. (Dimaya, supra, 138 S.Ct. at pp. 1215-1216; see 8 U.S.C. § 1101(a)(43)(F).) Section 16(b) defines a crime of violence as any "felony . . . that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." (18 U.S.C. § 16(b).) The Dimaya court concluded that section 16(b) suffered the same infirmity that made the ACCA's residual clause unconstitutionally vague, as both statutory standards impermissibly "tie[] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements"; and this "produces more unpredictability and arbitrariness than the Due Process Clause tolerates." (Johnson, supra, 135 S.Ct. at pp. 2557-2558; Dimaya, at p. 1216.)
On the other hand, the court stated: "As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct." (Johnson, supra, 135 S.Ct. at p. 2561.) "The Court's analysis in Johnson thus cast no doubt on the many laws that 'require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.' [Citation.]" (Welch v. United States (2016) 578 U.S. ___ [136 S.Ct. 1257, 1262].) As respondent points out here, section 210.5 requires the fact finder to apply the increased-risk standard to the real-world facts in the case before them, not a prior conviction. Thus, at issue here is the particular occasion which gave rise to the charges, not some hypothetical or imaginary ordinary case.
Respondent has also pointed out that appellate courts have rejected similar arguments based on Johnson, citing People v. Ledesma (2017) 14 Cal.App.5th 830 (Ledesma), and In re White (2019) 34 Cal.App.5th 933, 940-941. The most analogous here is Ledesma, as the required risk assessment was stated in language similar to that found in section 210.5. In Ledesma, the defendant was charged with aggravated kidnapping for rape pursuant to section 667.61, subdivision (d)(2), which requires a finding that the movement of the victim "substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense." (See Ledesma, at pp. 832-833.) The appellate court rejected the defendant's argument that this definition of aggravated kidnapping was unconstitutionally vague under the reasoning of Johnson, explaining that unlike the provision in Johnson, "California's asportation requirement compels juries and courts to apply a legal standard to real-world facts" and not a hypothetical, ordinary-case baseline when determining the asportation element. (Ledesma, at p. 838.) The Ledesma court added that the jury in Ledesma (as in all aggravated kidnapping cases) assessed whether the defendant's movement of the victim "was merely incidental to the rape and whether that movement substantially increased the risk of harm over and above the risk of harm inherent in rape. This is precisely the type of determination that Johnson held was beyond the void-for-vagueness problem presented by the residual clause. [Citation.]" (Ledesma, at pp. 838-839, citing Johnson, supra, 135 S.Ct. at p. 2561.)
We agree with the reasoning in Ledesma and find it equally applicable here. As in Ledesma, the risk assessment was presented to the jury based upon real-world facts in evidence at the defendant's trial, not upon a hypothetical case or imagined conduct. Thus, nothing in Johnson or Dimaya demonstrates that section 210.5's "substantial increase in the risk of harm" standard is unconstitutionally vague.
III. Witness intimidation
Defendant contends that there was insufficient evidence of witness intimidation to support that charge in count 12. We apply the same standard of review set forth in section I of our discussion.
It is a felony to attempt to prevent or dissuade the victim or witness to a crime from making a report to any law enforcement officer or from causing or seeking the arrest of any person in connection with the crime, when the attempt is accompanied by force or by an express or implied threat of force or violence. (§ 136.1, subds. (b)(1) & (c)(1).) We have previously concluded that substantial evidence supported defendant's guilt of the false imprisonment of Lopez by means of implied threat. Lopez was thus the victim to that crime, and obviously a witness to it as well, as he observed defendant's conduct and heard the words which caused his false imprisonment. We agree with respondent that the same evidence amply supported a finding that defendant intentionally used implied threats of force or violence in order to prevent Lopez's escape from causing defendant's arrest.
Defendant contends that Lopez could not have caused defendant's arrest. He posits that causing an arrest requires that it be purposefully initiated by the victim or witness, not simply occur by some happenstance that removes any impediment to arrest. He concludes: "'Disabled' is not the same as [to] 'dissuade.'" Defendant cites no authority for his suggestion or conclusion, and we do not find his reasoning persuasive. Section 136.1 is violated either by dissuasion or by prevention. Defendant does not argue that disabling cannot amount to preventing.
Substantial evidence supports a finding that defendant prevented Lopez from causing his arrest by keeping him in the garage with implied threats. Contrary to defendant's assertion to the contrary, the officers outside the garage had every reason to believe that Lopez was inside the garage with defendant. After defendant attempted to break in, the Rodriguez family fled their home and ran to the nearby deputies, informing them of what had happened and that their tenant, Lopez, was still inside. Law enforcement maintained their vigil outside the garage for hours without entering the garage, raising the reasonable inference that it was the presence of Lopez in the garage and the risk posed by the armed fugitive with him, which prevented defendant's capture and arrest. It also raised the reasonable inference that it was Lopez's eventual escape which enabled and thus caused defendant's arrest.
Defendant complains that the evidence failed to support an inference that defendant intended to interfere with the administration of justice. Citing People v. Navarro (2013) 212 Cal.App.4th 1336, 1349, and People v. McElroy (2005) 126 Cal.App.4th 874, 878, defendant argues that the the prosecution was required to show that the witness or victim attempted to report a crime or signal an intent to do so, but was dissuaded from doing so by the defendant. No such rule is enunciated in either case cited by defendant, and defendant has cited no authority which holds that the evidence must show that the victim or witness intended or attempted to report the defendant's crime or that defendant's threats prevented him or her from doing so. As is clearly provided in subdivision (d) of section 136.1, "Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section."
Defendant claims that in the alternative, a violation of section 136.1, subdivision (b)(1) occurs when the defendant attempts to dissuade a witness from reporting a crime in the future, but only if he does so with an "explicitly verbalized" threat that there would be an adverse consequence for reporting the crime. Defendant cites examples of cases in which the threats were explicit. (E.g., People v. Prieto (2003) 30 Cal.4th 226, 240; People v. Vasquez (2016) 247 Cal.App.4th 909, 913.) However, he cites no authority requiring such an "explicitly verbalized" threat. In fact, under section 136.1, subdivision (c)(1), the attempt to dissuade may be made either by an express or an implied threat of force or violence. There is no "talismanic requirement" that a defendant must say certain words in order to commit that offense, so long as the words support a reasonable inference that he attempted by threat of force or violence to dissuade or prevent a witness or victim from testifying, making a report, causing or seeking defendant's arrest, or other act prohibited by section 136.1. (See People v. Pettie (2017) 16 Cal.App.5th 23, 54, quoting People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344, and People v. Thomas (1978) 83 Cal.App.3d 511, 514.) We conclude that substantial evidence supported a conviction under section 136.1.
IV. Discovery
Defendant contends that upon his arrest, the deputies were obligated to have a blood sample collected and preserved, and that the prosecution was required to turn the sample over to the defense prior to trial. He adds that the failure to do so resulted in a violation of due process because testing of the sample might have supported an intoxication defense.
In general, the due process clause of the Fourteenth Amendment requires the prosecutor to disclose favorable and material evidence to the defendant. (Brady v. Maryland (1963) 373 U.S. 83, 87.) Evidence in the possession of the prosecution must be preserved when its "exculpatory value . . . was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (California v. Trombetta (1984) 467 U.S. 479, 489 (Trombetta).) Thus, it is not required that "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant" be preserved. (Arizona v. Youngblood (1988) 488 U.S. 51, 57, italics added (Youngblood).) Furthermore, although good or bad faith is irrelevant when the prosecution fails to disclose to the defendant material exculpatory evidence in its possession, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58.)
Defendant does not claim here that there was ever any blood sample to preserve. His complaint is that no blood sample was taken. However, he offers no direct authority holding that due process requires the police to collect evidence, but instead invites this court to adopt his view "that where a person is initially suspected of being under the influence and where the drawing and testing of his blood would otherwise be a routine [or] mandatory, . . . and where defendant himself is totally dependent on the police for access to time-sensitive and potentially exculpatory evidence, police do not act in good faith in not taking even the most minimal steps to draw and preserve that evidence that [is] patently relevant to the charges." (Italics added.)
Although the United States Supreme Court held in Trombetta and Youngblood that the failure to preserve evidence can violate due process under some circumstances, it has not held that due process requires the collection of evidence. (People v. Frye (1998) 18 Cal.4th 894, 942-943, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Furthermore, although the California Supreme Court "has suggested that there might be cases in which the failure to collect or obtain evidence would justify sanctions against the prosecution at trial, [the court has] continued to recognize that, as a general matter, due process does not require the police to collect particular items of evidence. [Citations.]" (Frye, at p. 943, italics added.)
Even if Trombetta and Youngblood's reasoning could be extended beyond preservation to include collection of evidence, it would be the defendant's burden to demonstrate that the evidence would have been exculpatory and that the failure of investigators to collect the evidence was in bad faith. (Frye, supra, 18 Cal.4th at pp. 943-944; see also People v. Montes (2014) 58 Cal.4th 809, 835-838; see Youngblood, supra, 488 U.S. at p. 58.) Moreover, such a showing must be made in the trial court. (See People v. Chism (2014) 58 Cal.4th 1266, 1300 [failure to preserve evidence]; cf. Montes, at pp. 836-837 [motion to dismiss for failure to collect evidence].) This court reviews the trial court's ruling for substantial evidence. (Montes, at p. 837.) Defendant's failure to raise the issue in the trial court forfeits review on appeal. (Chism, at p. 1300.)
Moreover, on this record, if the issue had been raised and rejected in the trial court, we would find substantial evidence to support a ruling that defendant had not met his burden. Defendant's drug recognition expert testified that defendant's bizarre behavior, his avoidance of a DUI checkpoint, and the "bouncing" of his eyes could have been indicators of being under the influence of a drug, depending on the drug, or they could have had other causes, such as increased adrenaline. There was no evidence of what drug might have been ingested, if any. On the other hand, the record does contain evidence that there was no intoxicating substance in defendant's system during his crimes. More than eight hours after he took refuge in the garage, defendant was examined by Dr. Nemazee, who noted in his report that defendant denied any use of tobacco, alcohol or illicit drugs. Dr. Nemazee testified that he looked for symptoms that defendant was under the influence of an intoxicating substance, but did not remember seeing any such symptoms, and that if he had seen any, he would have noted the observation in his report, which contained no such notation. Deputies later searched defendant's vehicle, but found no drugs, narcotics, or drug paraphernalia inside. Under such circumstances, it cannot reasonably be said that a blood sample would have been exculpatory or that investigators exhibited bad faith in failing to draw and preserve a blood sample. Defendant has not demonstrated that his challenge would have had any merit if he had preserved the issue for appeal.
V. Assessments
Respondent asks that we correct the judgment to reflect imposition of court facilities fees (Gov. Code, § 70373, subd. (a)(1)) and court operations assessments (Pen. Code, § 1465.8, subd. (a)(1)), as to the counts as to which the sentences were stayed.
Although respondent refers to these assessments sometimes as "fines," neither the court security fee nor the court facilities assessment is punitive in nature. (People v. Sencion (2012) 211 Cal.App.4th 480, 484.) In general, a "fine" is a penalty, whereas a "fee" is nonpunitive, and a "court security fee is not so punitive in nature or effect that it constitutes punishment." (See People v. Alford (2007) 42 Cal.4th 749, 757 (Alford).)
In its oral pronouncement, the trial court imposed a $240 criminal conviction fee pursuant to Government Code section 70373, subdivision (a)(1). That section provides, in relevant part: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony . . . ." (Italics added.)
The trial court also assessed $320 for "court provisions," which we construe as a court operations assessment pursuant to section 1465.8, subdivision (a)(1). That section provides, in relevant part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . . ." (Italics added.)
The trial court thus imposed eight court facilities assessments and eight court operations assessments, although it did not specify to which counts each assessment attached. Defendant was convicted of 14 counts (counts 1, 2, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, and 19). The trial court orally pronounced judgment only as to counts 1, 2, 7, 9, 10, and 11. The court's minutes show that defendant was sentenced on those counts as well as the remaining eight counts, and that the assessments were ordered as to each of the 14 counts. The minutes also state that the sentences on counts 13, 14, 16, 17, 18, and 19 were stayed pursuant to section 654.
Section 654, subdivision (a) reads: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." When a conviction is subject to section 654, the sentencing court is required to impose the sentence and then stay it. (People v. Duff (2010) 50 Cal.4th 787, 796.)
Defendant does not object to the lack of oral pronouncement on all counts, but contends that the assessments were properly stayed along with the penalty portion of the stayed sentences. We disagree. A stay ordered pursuant to section 654, subdivision (a) does not extend either to a court facilities assessment or to a court operations assessment; thus the trial court was required to impose them as to each count. (See People v. Sencion, supra, 211 Cal.App.4th at pp. 483-484.) As the assessments are mandatory, they may be imposed on review by the appellate court. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
Defendant disagrees, arguing that the assessments are punitive, and thus subject to section 654. In essence, defendant contends that we should disagree with the opinion of our Supreme Court in Alford that a court security fee does not constitute punishment, because the issue before that court was whether the fee was barred by the Constitution's ex post facto clause. (See Alford, supra, 42 Cal.4th at pp. 754-759.) Dictum of the Supreme Court carries persuasive weight, and we find Alford persuasive. (See People v. Dixon (2011) 191 Cal.App.4th 1154, 1159.) Moreover, we agree with the reasoning of the courts of appeal that have considered the issue presented here, and have concluded that the court security fee or the court facilities assessment, or both, do not constitute punishment subject to section 654. (See, e.g., People v. Sencion, supra, 211 Cal.App.4th at pp. 483-484; People v. Sharret (2011) 191 Cal.App.4th 859, 865; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328; People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)
Defendant also contends that the assessments violate his rights to equal protection under the federal and state constitutions. "Broadly stated, equal protection of the laws means 'that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness.' [Citation.]" (People v. Wutzke (2002) 28 Cal.4th 923, 943.) The person claiming a violation must first demonstrate that "'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citation.] . . . '[N]either the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law [for] persons who are different . . . "with respect to the legitimate purpose of the law."' [Citations.]" (Ibid.)
Defendant states that his "rights to equal protection under law are violated by requiring him alone to pay a court-usage fee for use of court facilities which was as much availed by the prosecution itself." Defendant then asserts: "Unless the prosecution is required to pay an equal and commensurate amount, the imposition on [defendant] of exactions under the statutes at issue violated his rights to equal justice under law."
The "prosecution" was acting on behalf of and as the agent of the people of the State of California. (See People v. The North River Ins. Co. (2018) 31 Cal.App.5th 797, 806.) Essentially, defendant's assertion is that the tax-paying people of the State of California do not pay any part of the costs for maintaining court facilities or to support court operations. Defendant's assertion is unsupported by authority or logic. As defendant has failed to demonstrate how he is similarly situated to all other California residents or to identify any other groups with whom he is similarly situated, we reject his assertion and modify the judgment as respondent requests.
DISPOSITION
The judgment is modified to reflect that a $40 court security fee (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) are imposed as to each of the 14 counts (counts 1, 2, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, and 19), and are not stayed even as to those counts for which the sentences were stayed. It is further modified to correct the sentence in count 2 to be life with the possibility of parole. As so modified, the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment showing the corrected sentence in count 2, showing that the total amount assessed in item 9d, "Court Operations Assessment" is $560, and showing that the total amount assessed in item 9e, "Conviction Assessment" is $420. The court is further directed to deliver a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST