Opinion
F071462
07-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH HENRY PACKARD, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14906627)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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Joseph Henry Packard challenges his convictions and sentences on four counts of attempting to dissuade a victim or witness from cooperating with law enforcement, under Penal Code section 231.6, subdivision (b)(2). The four counts, and corresponding convictions, were based on separate phone calls that Packard made from jail to his fiancée, Kemirah Dickson. Packard contends only one of these convictions can stand because the prosecution was required to charge his attempts to dissuade Dickson as one continuing crime. Alternatively, Packard contends the sentences on all but one of his convictions under section 231.6, subdivision (b)(2) must be stayed under section 654. We reject these contentions.
Subsequent statutory references are to the Penal Code unless otherwise specified.
The parties agree that Packard is entitled to one additional day of actual presentence custody credit. We agree and will direct the trial court to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
Packard was charged, in Fresno County Superior Court, with misdemeanor battery, inflicting corporal injury on a coparent, and five counts of attempting to dissuade a witness. (§§ 243, subd. (e)(1), 273.5, subd (a), 136.1, subd. (b)(2).) After jury trial, he was found guilty of all counts except for one count of attempting to dissuade a witness, on which he was acquitted. He was sentenced to an aggregate term of 12 years: four years on the count of inflicting corporal injury on a coparent and two years on each of four counts of attempting to dissuade a witness.
Packard's convictions for misdemeanor battery and inflicting corporal injury on a coparent are not at issue in this appeal.
The charges of misdemeanor battery and infliction of corporal injury on a coparent were based on domestic violence incidents between Packard and Dickson. The incident underlying the misdemeanor battery charge occurred on June 26, 2013. Packard grabbed Dickson's hair, punched her twice with a closed fist, and broke her phone. Dickson suffered a half-inch-long cut to the inside of her upper lip but declined medical assistance. The incident underlying the infliction of corporal injury to a coparent occurred on April 1, 2014. Packard slapped Dickson, threw her to the ground, and socked her. Dickson suffered an inch-long scrape to her right elbow and pain to parts of her body, but refused medical treatment. Dickson's cousin, Jaquila Johnson, witnessed this assault.
In addition to misdemeanor battery and infliction of corporal injury on a coparent, Packard was found guilty of attempting to dissuade a witness in counts 2, 3, 4, and 6. Each of the four counts of attempting to dissuade a witness were based on separate phone calls that Packard made to Dickson from jail during a short period, prior to the preliminary hearing in the matter.
Count 2 was based on an April 12, 2014 phone call, count 3 was based on an April 14, 2014 phone call, count 4 was based on a second April 14, 2014 phone call, and count 6 was based on a May 13, 2014 phone call. In each of these phone calls, Packard attempted to dissuade Dickson, and/or to have Dickson dissuade her cousin, from going to court in this matter or from otherwise cooperating with law enforcement authorities.
Packard was 20 years old when he committed the misdemeanor battery, and had just turned 21 years old at the time the other offenses were committed.
DISCUSSION
I. Multiple Convictions for Attempting to Dissuade a Witness
Packard challenges his multiple convictions for attempting to dissuade Dickson as a witness. These convictions were based on section 136.1, subdivision (b)(2). This statute prohibits, in pertinent part, anyone from attempting to "prevent or dissuade" a victim of, or witness to, a crime from "[c]ausing a complaint [or] information ... to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2).) Packard contends that only one of his four convictions under this statute "can stand" because "a violation of section 136.1, subdivision (b)(2) is a continuing offense." Stated otherwise, he argues that the separate phone calls at issue, all of which were made within a short period of time (two even on the same day), constituted a continuous course of conduct with a singular goal and, therefore, can support only one conviction under section 136.1, subdivision (b)(2). Packard does not challenge his convictions for insufficiency of evidence.
Packard's argument is foreclosed by section 954 and People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519 (Kirvin). Section 954 states: "An accusatory pleading may charge ... different statements of the same offense ... under separate counts." It further clarifies that "the defendant may be convicted of any number of the offenses charged." (§ 954.) Whether multiple counts of the same offense are proper under section 954 depends on whether the defendant engaged in a completed crime as determined by the statutory elements of the charged offense. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.) If the defendant committed multiple completed crimes under the same statute, the prosecution may properly charge each completed offense under the statute as a separate count. (Id. at pp. 1473-1477.)
To prove the crime of attempted dissuasion of a victim or witness from prosecuting a crime in violation of section 136.1, subdivision (b)(2), the prosecution must establish that the defendant, with the specific intent to do so, attempted to dissuade a witness or victim from "[c]ausing a complaint [or] information ... to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2); People v. Velazquez (2011) 201 Cal.App.4th 219, 229-230.) Accordingly, the crime of attempted dissuasion of a victim or witness under section 136.1, subdivision (b)(2) is completed once the defendant knowingly takes an immediate step toward dissuading another person from cooperating in the filing and prosecution of a complaint or information. (Kirvin, supra, 231 Cal.App.4th at p. 1519; CALCRIM No. 2622.) Under section 954, the prosecution may charge violations of section 136.1, subdivision (b)(2) either as separate counts or as a single count encompassing a continuing course of conduct, depending on the circumstances and the exercise of prosecutorial discretion. (See Velazquez, supra, at p. 230; People v. Salvato (1991) 234 Cal.App.3d 872 (Salvato); Kirvin, supra, 231 Cal.App.4th at pp. 1519-1520.)
In Kirvin, the defendant was charged with multiple counts of violating section 136.1, subdivision (b)(2), based on separate phone calls he made to his sister urging her to persuade a particular witness not to testify against him. Kirvin held that the defendant was properly charged with multiple counts of violating the statute because a "separate violation of section 136.1, subdivision (b)(2) was completed each time [the defendant] placed a call to his sister urging her to persuade [the witness] not to go to court." (Kirvin, supra, 231 Cal.App.4th at p. 1519.) Kirvin noted that the fact that all the relevant calls were directed towards the same goal "is irrelevant" in this context. (Ibid.) Kirvin's analysis controls the outcome here. Packard does not dispute that he placed multiple phone calls to Dickson urging her not to cooperate in the filing and prosecution of criminal charges against him. Under section 954, Packard was thus properly charged with multiple counts of violating section 136.1, subdivision (b)(2).
Packard's reliance on Salvato, supra, 234 Cal.App.3d 872, is unavailing. Salvato recognizes that section 136.1 subdivision (b)(2) may be violated by commission of a number of acts over a period of time as well as instantaneously, by commission of a single act. (Salvato, supra, at p. 883.) The question in Salvato was whether, having charged the defendant with attempting to dissuade a witness over a period of time, the prosecution was required to specify or elect particular acts underlying the charge. (Id. at pp. 878, 883.) The Salvato court held that such specification was not required because "[t]he gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal." (Id. at p. 883.) Salvato, however, does not preclude the prosecution from charging distinct and completed violations of section 136.1, subdivision (b)(2) in separate counts, as is the case here. II. Section 654
As an alternative to his previous argument, Packard argues that the sentences on three of his convictions under section 136.1, subdivision (b)(2) must be stayed pursuant to section 654. In other words, he contends the court erred in imposing multiple punishments for his convictions on counts 2, 3, 4, and 6. This argument also fails because section 654 does not bar multiple punishments for separate violations of the same statute.
Section 654 provides: "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." (§ 654, subd. (a), italics added.) The statute is "intended to ensure that [the] defendant is punished 'commensurate with his culpability.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.) The California Supreme Court recently overruled prior case law to hold that "section 654 does not bar multiple punishment for multiple violations of the same criminal statute." (People v. Correa (2012) 54 Cal.4th 331, 334, italics added.) Since all of Packard's convictions for dissuading Dickson were pursuant to section 136.1, subdivision (a)(2), Correa bars the application of section 654 to his convictions. III. Custody Credits
Correa clarified that the new rule had prospective application only. (Correa, supra, 54 Cal.4th at pp. 334, 340-344.)
Both parties agree Packard is entitled to one additional day of actual custody credit. A defendant is entitled to credit for any time spent in custody prior to sentencing. (§ 2900.5, subd. (a).) "Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Here, based on the dates of Packard's arrest and sentencing, he was entitled to 381 days of credit for actual custody. The trial court erroneously assessed 380 days of credit for actual custody. Accordingly, the trial court is directed to add one day of credit to defendant's actual custody credits, which in turn will increase his total presentencing custody credits from 760 days to 761 days.
DISPOSITION
The judgment is affirmed. The trial court is directed to modify the abstract of judgment to reflect actual presentence custody credit of 381 days and total presentence custody credit of 761 days, and to forward the corrected abstract of judgment to the appropriate correctional authorities.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
FRANSON, J.