Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD223048, Frank A. Brown, Judge.
McDONALD, J.
Defendant Rahin Lane Mitchell contends the evidence is insufficient to support his conviction of attempting to solicit the crime of preventing or dissuading a witness from attending, or testifying at, any trial, proceeding, or inquiry authorized by law. (Pen. Code, § 653f, subd. (a).) He further contends the trial court abused its discretion by requiring him to pay restitution to the California Witness Relocation and Protection Program (Program) because it was not the direct victim of his crime. (§ 1202.4, subd. (k).)
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 2009, Mitchell pleaded guilty to attempted murder of a police officer and robbery. At the earlier preliminary hearing, Angela Williams testified she saw Mitchell fire a gun at a police officer and Oluwaseun Kuyoro testified Mitchell robbed him at gunpoint. Williams and Kuyoro both testified they were ready, willing, and able to testify again whether the case went to trial immediately after the preliminary hearing or whether it went to trial after an appeal. The court sentenced Mitchell to 33 years in prison for attempted murder for shooting at a police officer and committing robbery.
On June 25, 2009, while serving his sentence for attempted murder and robbery, Mitchell wrote a letter to his fellow 59 Brim gang members. The letter read:
"Blood I'm kinda disappointed in my niggas for not handling that fool at the club. [¶] [T]hat fool be at the Round Table on Fridays, reggae night. [¶] 'Wow' a nigga need to send one of the little homeys on one cause I got this appeal going and I need to be right when I do bounce back. [¶] Plus the bitch that told on me also live on Skyline.... The street she live on is called 'Old Oak' by Gribble.... So, blood, if a nigga can get one of them out of the way, especially [Williams] I'll be up under the 15 mark, and that's a big difference to me and minds [¶] so put it down for yo nigga, cause if the shoe was on the other foot, I would be own from the jump.... [¶] Don't let the homey go out when it in y'all's power to help the situation.... [¶] Push that G call... fuck what I did or how and why.... [¶] Angela R. Williams is her name!"
Correctional officer Arthur Munoz intercepted and confiscated Mitchell's letter. Munoz sent the letter to the district attorney's office.
Based on Mitchell's letter, the district attorney charged him with (1) attempting to solicit murder (§§ 664, 653f, subd. (b)), and (2) attempting to solicit the crime of witness intimidation (§§ 664, 653f, subd. (a)). After a bench trial, the court found Mitchell guilty of both counts. As part of the restitution order, the court ordered him to pay $17,583.76 to the Program for costs it incurred to relocate Williams following Mitchell's letter. The court took judicial notice that Mitchell filed a notice of appeal from the attempted murder and robbery convictions before he wrote the letter.
The provision of section 653f, subdivision (a), section 136.1, subd. (a)(1)(2), and CALCRIM No. 2622 are the same. The court convicted Mitchell of violating section 653f, subdivision (a). Although the parties refer to the contested conviction under section 136.1, we will refer to section 653f, subdivision (a).
DISCUSSION
I
Witness Intimidation
We review the record most favorably to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—that permits a trier of fact to find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We do not reverse unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the determination of the fact finder]." (People v. Redmond (1969) 71 Cal.2d 745, 755).
Section 653f, subdivision (a), makes it unlawful for any person to knowingly and maliciously attempt to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (§ 653f, subd. (a).) Mitchell does not challenge whether the evidence is sufficient to demonstrate the requisite malice for a section 653f, subdivision (a) violation. Rather, Mitchell argues the evidence does not support a section 653f, subdivision (a) violation because at the time he wrote the letter, there was no "trial, proceeding, or inquiry authorized by law" pending that would require future witness attendance or testimony by either Williams or Kuyoro.
Mitchell argues People v. Mendoza (1997) 59 Cal.App.4th 1333, People v. Ford (1983) 145 Cal.App.3d 985, and People v. Thomas (1978) 83 Cal.App.3d 511 are distinguishable from the instant case because there, criminal trial proceedings at the trial level were still in progress at the time the defendant threatened a witness. We agree with this distinction. However, we do not find it determinative.
Section 653f is designed not only to prevent solicitations of the commission of the crimes for which the solicitations are made, but to protect "inhabitants of this state from being exposed to inducement to commit or join in the commission of the crimes specified." (Benson v. Superior Court of Los Angeles County (1962) 57 Cal.2d 240.) In Benson, the defendant solicited an undercover investigator posing as a pregnant woman to give false testimony. (Id. at pp. 242-243.) The defendant challenged his conviction for solicitation on the ground there was no possibility the target crime could have been committed: the investigator was not pregnant, there would have been no adoption proceeding; and therefore, the investigator would not have presented false testimony. (Ibid.) The court rejected this claim because " '[p]urposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability.'... If the solicitor believes that the act can be committed 'it is immaterial that the crime urged is not possible of fulfilment at the time when the words are spoken' or becomes impossible at a later time." (Id. at p. 243.)
The Benson court relied on Commonwealth v. Jacobs (1864) 91 Mass. 274 [9 Allen 274] in which the defendant was convicted of soliciting a citizen of his commonwealth to leave it for the purpose of enlisting in the service of a different jurisdiction. Defendant argued that because the person being solicited was unfit for military services, the crime urged could not possibly be completed. (Id. at p. 275.) The court rejected this argument, declaring that the person soliciting the crime "cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance." (Ibid.)
We discern no significant difference between the situations in Benson and Jacobs and the instant case. Here, Mitchell filed a notice of appeal from the attempted murder and robbery convictions before he wrote the letter. Further, he expressly referred to his pending criminal proceeding in the letter stating, "[A]nigga need to send one of the little homeys on one cause I got this appeal going and I need to be right when I do bounce back." At the preliminary hearing, Mitchell heard Williams and Kuyoro both testify they were ready, willing, and able to testify again whether the case went to trial immediately after the preliminary hearing or whether it went to trial after an appeal. Mitchell undisputedly believed Williams and Kuyoro were potential future witnesses, who, should they testify against him again, would hurt his likelihood for success on appeal or at a future trial. Further, there is no question Mitchell believed his intent to "get rid" of Williams and Kuyoro could be completed by his gang members. The fact that Mitchell was unaware at the time he wrote the letter that witnesses do not testify on appeal and there was little likelihood of a retrial does not diminish his commission of the crime. Therefore, because Mitchell wrote the letter with the sole purpose to maliciously prevent Williams and Kuyoro from testifying at any future "trial, proceeding, or inquiry authorized by law, " we find the evidence sufficient to support his conviction of the offense of attempting to prevent or dissuade a witness under section 653f, subdivision (a), even if neither was likely to be a witness in the future.
II
Restitution Award
Mitchell contends the restitution order to the Program was unlawful under section 1202.4, subdivision (k), because the Program was not a direct victim of the crime committed. Section 1202.4, subdivision (k), provides that a "victim" shall include the following:
"Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime." (§ 1202.4, subd. (k).)
However, as the People point out, restitution is specifically authorized by section 1202.4, subdivision (f)(4)(A), which provides:
"If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim... the amount of assistance provided shall be presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of the restitution ordered."
Further, section 1202.4, subdivision (f)(2) provides:
"Restitution ordered pursuant to this subdivision shall be ordered to be deposited in the Restitution Fund to the extent that the victim, as defined in subdivision (k) has received assistance from the Victim Compensation Program."
Mitchell concedes the court's restitution order is proper under section 1202.4, subdivision (f)(4)(A). However, he argues section 1202.4, subdivision (k), is inconsistent with section 1202.4, subdivision (f)(4)(A). Therefore, under the rule of lenity, because restitution is improper under section 1202.4, subdivision (k), the trial court's restitution award to the Program was unlawful. We review the court's restitution order for abuse of discretion. (People v. Duong (2010) 180 Cal.App.4th 1533, 1537.)
"The rule [of lenity] applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule." (People v. Avery (2002) 27 Cal.4th 49, 58.) We find no "egregious ambiguity" between section 1202.4, subdivision (k), and subdivision (f)(4)(A).
Section 1202.4 supports a broad constitutional mandate to award restitution to all persons incurring losses as a result of crime. (Cal. Const., art. I, § 28, subd. (b).) "[A]n appellate court should not strain to interpret a penal statute in defendant's favor if it can fairly discern a contrary legislative intent." (People v. Avery, supra, 27 Cal.4th at pp. 57-58.) Here, we conclude the Legislature intended restitution awards to the Restitution Fund under section 1202.4, subdivision (f)(4)(A), be compatible with restitution awards to direct "victims" under section 1202.4, subdivision (k). Both subdivisions provide parallel mechanisms for restitution consistent with the California Constitution.
Section 1202.4, subdivision (f)(4)(A), plainly and unambiguously allows restitution be awarded to the Restitution Fund where the Program assisted a direct victim. Here, Williams is a direct victim of Mitchell's criminal conduct. (§ 1202.4, subd. (k).) The Program paid Williams $17,583.76 to relocate as a result of Mitchell's criminal conduct. The Restitution Fund funds this Program. (§ 14033.) Therefore, the Restitution Fund provided $17,583.76 to the Program on behalf of Williams. This money is presumed to be a direct result of Mitchell's criminal conduct. (§ 1202.4, subd. (f)(4)(A).) Mitchell does not challenge the amount of restitution awarded.
We thus agree with the People's contention that the restitution order was proper, albeit under an incorrectly referenced code section. We order the abstract of judgment modified to reflect imposition of the subject restitution under the proper code section, section 1202.4, subdivision (f)(4)(A).
DISPOSITION
The abstract of judgment is ordered modified to reflect imposition of $17,583.76 for restitution under section 1202.4, subdivision (f)(4)(A), rather than section 1202.4, subdivision (k). The judgment is otherwise affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.