Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA094704. Yvonne T. Sanchez, Judge. Reversed in part and affirmed in part.
Ronnie Duberstein, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Jesse Phillip Vidal appeals from a judgment entered upon his convictions by jury of one count of inflicting corporal injury on a spouse/cohabitant (Pen. Code, § 273.5, subd. (a), count 4) and three counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2), counts 5, 6 & 7). Appellant admitted having suffered a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivision (a)(1) and subdivisions (b) through (i), and a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to an aggregate prison term of 18 years which included the upper term of four years on count 4, doubled as a second strike, plus 5 years pursuant to section 667, subdivision (a) and an additional year pursuant to section 667.5, subdivision (b); and one third the midterm doubled to 16 months on each count of dissuading a witness.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury acquitted appellant of kidnapping (§ 207, subd. (a), count 1), making a criminal threat (§ 422, count 2) and false imprisonment (§ 236, count 3).
Appellant contends that (1) there was insufficient evidence to sustain his conviction on one count of attempting to dissuade a witness, thereby depriving him of due process, (2) he was improperly convicted of three counts of attempting to dissuade a witness because there was only one continuing crime, (3) the trial court improperly imposed multiple punishments for the three counts of attempting to dissuade a witness in violation of section 654, and (4) imposition of the upper term sentence on count 4 violated his rights to a jury trial, proof beyond a reasonable doubt and due process, as articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and its progeny.
We reverse in part and affirm in part.
FACTS
The assault
In September 2005, appellant and Crystal Gonzales were romantically involved and had been dating on and off for a year or two. Appellant was living intermittently with Gonzales at her grandfather’s house in Pico Rivera.
On September 17, 2005, appellant and Gonzales visited her friend Henry’s house. Appellant and Gonzalez were using drugs and were arguing. To avoid a scene at the house, appellant pulled Gonzales out of the house and walked her to a river bed several blocks away, gripping her arm. There, he hit her on her arms and two or three times in the face with an open hand. He sat on top of her and placed a gun in her mouth and threatened to kill her if she told anyone. Fearing that appellant would hurt her, Gonzales did not call for help during her ordeal.
When appellant and Gonzales returned to Henry’s house, they resumed using drugs. Appellant placed the pipe they were using to ingest the drugs into Gonzales’s hand, causing a burn and scar. Gonzales was unable to escape or seek help because appellant was always with her, even taking her to the bathroom with him when he went.
As a result of the attack, Gonzales suffered numerous cuts and bruises to her face and other parts of her body and a burn to her hand. She later told her mother of the beating and the mother called the police. Gonzalez told the investigating Deputy Sheriff that she had been beaten by appellant when they were home alone. She told him that there were no weapons involved. Only later did she inform other officers about the gun.
Intimidating the witness
After his arrest, appellant wrote letters to Gonzales from jail. She gave them to her mother to hold in case something happened to her.
January 7, 2006 letter (count 5)
In a letter dated January 7, 2006, appellant stated in part: “I’m the only one who knows what needs to be done to get this case beat or dismissed. That’s why I need to get at you over the phone or in person as soon as possible. There is a few things that you need to do and after you do them, don’t go back to court. The D.A. will try to find you and subpoena you back to court. So be careful that the D.A. does not locate you. Baby, the D.A. will try to scare you and tell you stuff like if you don’t stick to your first story you told the cops and the court that will be thrown in jail for life. Don’t believe the D.A. It’s only a scare tack used by them, so you don’t change your story and mess their whole case up. That’s what you need to do is change your whole story and say I never hit you or threatened your life with a gun, that you lied and set me up for whatever reason you can come up with. But make sure you also say that on those days, September 17th, 18th, 19th and 20th, that you first claimed I beat you and threatened you that I was not even around you on those days, that I was supposedly at my sister’s house. You need to put everything down there in a written statement. I-n-k?”
January 9, 2006 letter (count 6)
On January 9, 2006, appellant wrote a second letter to Gonzales in which he stated in part: “Baby, I hope everything works out okay with my case. Baby, I think you might have to go to court and speak up on my behalf instead of being on the D.A.’s side. This time you will be on my side. You would have to get on the stand and change your whole story around. First of all, you would have to say I never hit you or threatened you with a gun. You would have to make up a different story as to how you got bruises, not from me. You would have to come up with a good story why you lied and set me up saying I’m the one who hit you and threatened you with a gun. Also, baby, the D.A. will try to scare you by maybe even telling you that they can throw you in jail for life. Don’t fall for it. The D.A. is going to do everything to scare you so that you don’t change your first story. [¶] Baby, you want to use the excuse that you were high on meth when you made the police report and when you got on the stand the first time, but now you are sober and realize that you did a very bad thing by sending an innocent person to jail. Also, baby, make sure you stipulate that I was not even staying with you on the days you told the cops and Court that I hit you and threatened you with a gun. I was at my sister’s house. Say that.”
April 17, 2006 letter (count 7)
Gonzales did not appear for appellant’s trial in April 2006, because she was frightened. A friend of appellant’s had approached her in the street and told her there was “paperwork” on her, meaning that if she testified something would happen to her. As a result of her failure to appear, the charges against appellant were dismissed and then refiled. On April 17, 2006, appellant sent her a letter, stating in part: “Well, the good news is they dismissed my case. The bad news is they refiled on me. They dismissed the case at Norwalk on 4/10/06 due to you not appearing. You are doing a good job, tiger, thank you. Now here’s the situation at this point. Since they refiled on me, I have to start the whole process all over again. I’m starting all over back at Whittier court. Crystal, you need to continue to do what you are doing and stay no contact with the cops. Since they could not get you to come in to court the first time on your own, now this time they are going to put a warrant out for your arrest and try to have the cops arrest you and bring you in to testify against me. [¶] So stay on your toes out there with cops. Once they dismiss my case a second time, they cannot refile any more. I beat my case, I go back to Whittier court on April 24th. I am set for preliminary hearing. Don’t show up to that court date. I know they are going to be looking for you to show up against me.”
DISCUSSION
I. There was insufficient evidence to support the verdict in count 6.
The jury found appellant guilty in counts 5, 6 and 7 of attempting to dissuade a witness. With regard to count 6, the information alleged that appellant had violated section 136.1, subdivision (a)(2) in that he “knowingly and maliciously attempt[ed] to prevent and dissuade CRYSTAL GONZALES, a witness and victim, from attending and giving testimony at a trial proceeding, and inquiry authorized by law.” Count 6 pertained to the January 9, 2006 letter in which appellant told Gonzales that she “might have to go to court and speak up on [his] behalf . . . .” It said nothing about her avoiding testifying.
Section 136.1 provides in part: “(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] . . . [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.”
Appellant contends and respondent agrees that the evidence was insufficient to support his conviction of count 6 because the January 9, 2006 letter sought to have Gonzales testify falsely, not avoid testifying. We agree that the January 9, 2006 letter does not support conviction of violating section 136.1, subdivision (a)(2) and reverse as to this count.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
The offense of preventing or attempting to prevent a witness from attending or giving testimony at a trial requires the specific intent to keep a witness from giving testimony. (People v. Womack (1995) 40 Cal.App.4th 926, 930 (Womack); People v. Lyons (1991) 235 Cal.App.3d 1456, 1461.) The offense proscribed in section 137 of inducing or attempting to induce a person to give false testimony or withhold true testimony requires the specific intent to induce a witness to lie or withhold the truth. (Womack, supra, at p. 929.)
Appellant’s January 9, 2006 letter provides no evidence that he intended to dissuade Gonzales from testifying. It does not tell her to avoid a subpoena. It does not say anything about her not testifying. Quite to the contrary, it encourages her to testify and to fabricate a story. The letter tells her to go to court and “be on [his] side,” to “change [her] whole story around,” and to say he “was not even staying with [her] on the days [she] told the cops and court that [he] hit [her].” The letter reflects appellant’s intent to induce false testimony, not to dissuade giving testimony. Other than this letter, there is no other evidence of appellant’s intent.
The offense of dissuading a witness from testifying charged in count 6 was not proved, and the conviction on that count cannot stand. Rather, the evidence supported a conviction of attempting to adduce false testimony under section 137. But we are unaware of any rule of law that would allow the trial court or this court to modify the judgment to find appellant guilty of a crime that was proven but not charged. (Womack, supra, 40 Cal.App.4th at p. 934.)
II. Appellant was properly convicted of two counts of attempting to dissuade a witness.
Appellant contends that it was error to convict him of multiple counts of attempting to dissuade a witness because only one continuing crime occurred. He argues that his separate letters to Gonzales over a four-month period “constituted a series of acts within a continuous course of conduct, as contemplated by the Legislature, and constitute but one crime.” This contention lacks merit.
Appellant relies upon the principle that “[a]bsent express legislative direction to the contrary, where the commission of a crime involves continuous conduct which may range over a substantial length of time and [a] defendant conducts himself in such a fashion with but a single intent and objective, that defendant can be convicted of only a single offense.” (People v. Djekich (1991) 229 Cal.App.3d 1213, 1221; see also People v. Salvato (1991) 234 Cal.App.3d 872, 882–883; People v. Lewis (1978) 77 Cal.App.3d 455, 461.)
None of the cases on which appellant relies addresses circumstances similar to those presented here. But we need not decide whether section 136.1 is the type of offense that is a continuous course of conduct allowing only a single conviction. Here, it is clear that appellant had multiple objectives in sending the January 7 and April 17, 2006 letters.
The January 7, 2006 letter (count 5) was aimed at dissuading Gonzales from attending and testifying at appellant’s trial. It was apparently successful in achieving its goal, as Gonzalez did not attend the April trial date, resulting in the prosecutor dismissing the case and later refiling it. The April 17, 2006 letter (count 7), sent over three months later, was aimed at dissuading Gonzales from attending the preliminary hearing on the refiled charges. The two letters had entirely separate objectives, and as such there was no impediment to appellant being convicted of both offenses.
III. The trial court did not err in failing to stay sentence on the second conviction of section 136.1.
Appellant contends that the trial court improperly imposed multiple punishments for the separate counts of attempting to dissuade a witness in violation of section 654. He argues that there was no evidence that appellant harbored separate and independent objectives when he sent the three letters to Gonzales. The letters evidence the single intent to get Gonzales to act on his behalf so that the charges against him would be dismissed. This contention is without merit.
Section 654 provides in part: “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.) It was “intended to ensure that defendant is punished ‘commensurate with his culpability’[.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) If, on the other hand, the “[defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) Section 654 turns on the objective in violating both provisions, not the Legislature’s purpose in enacting them. (People v. Britt (2004) 32 Cal.4th 944, 952.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review such a finding under the substantial evidence test (see People v. Osband (1996) 13 Cal.4th 622, 730–731); we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803.) We must determine whether the violations were a means toward the objective of commission of the other. (See People v. Beamon, supra, 8 Cal.3d at p. 639.)
As previously discussed, appellant had separate objectives for the January 7, 2006, and April 17, 2006 letters. The purpose of the January 7, 2006 letter was to dissuade appellant from attending the originally scheduled trial. There was a three-month time lapse between that letter and the April 17, 2006 letter. Temporal proximity of the acts, although not determinative of the proscription against double punishment, is a relevant consideration. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) Courts have found separate objectives when the objectives were consecutive, even if similar. (People v. Britt, supra, 32 Cal.4th at p. 952.) Because Gonzales failed to attend the original trial, the prosecutor was forced to dismiss the matter and to refile it. The April letter was aimed at dissuading Gonzales from attending the preliminary hearing in the refiled action. Thus, the two letters were not part of an indivisible course of conduct, but were two independent acts designed to meet different circumstances.
IV. The trial court properly imposed the upper term sentence on count 4 for corporal injury on a spouse/cohabitant.
The trial court sentenced appellant to the upper term of four years for violating section 273.5, subdivision (a) doubled as a second strike. In imposing the upper term, the trial court found as factors in aggravation that (1) appellant had engaged in violent conduct which indicated that he was a danger to society, (2) he was on parole at the time he committed the current offense, and (3) his prior convictions show increasing seriousness.
Appellant’s juvenile adjudications and adult convictions are as follows: (1) April 1993, adjudicated vandalism (§ 594, subd. (a)(1)) and battery (§ 242), placed in camp community placement program, (2) December 1993, adjudicated taking a vehicle without consent (Veh. Code, § 10851), placed in camp community placement program, (3) February 1994, failure to obey juvenile court order (Welf. & Inst. Code, § 777), placed in camp community placement program, (4) September 1995, convicted of driving without a license (Veh. Code, § 12500, subd. (a)) given one-year summary probation and 25 days in jail, (5) October 1995, under influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), sentenced to 270 days in jail, (6) January 1996, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) given 36 months summary probation and 55 days in jail, (7) January 1996, vandalism (§ 594, subd. (a)), given two-year summary probation and 30 days in jail, (8) April 1996, convicted of battery (§§ 242/243), given 36 months probation and 60 days in jail, (9) May 1996, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), given two years formal probation and 270 days in jail, (10) February 1997, kidnapping (§ 207, subd. (a)), sentenced to three years state prison, (11) June 2001, trespassing on railroad property (§ 369i, subd. (b)), given fine and restitution, (12) October 2002, possession of a firearm (§ 12021, subd. (a)(1)), sentenced to 32 months in state prison, and (13) October 2004, possession of controlled substance (Health & Saf. Code, § 11377, subd. (a)), sentenced to 16 months in state prison.
Appellant contends that because he was sentenced to the upper term based upon aggravating factors that were not found by a jury beyond a reasonable doubt, he was deprived of his rights under the Fifth, Sixth and Fourteenth Amendments to a jury trial on those issues, proof beyond a reasonable doubt and due process, as articulated in Apprendi and its progeny. He further contends that the prior conviction exception to the jury requirement is inapplicable to the factors relied upon by the trial court here. Finally, appellant contends that he did not receive the notice required by due process because the factors used to impose the upper term were not alleged in the information. These contentions are without merit.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is, “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (Blakely, supra, at p. 303) must be determined by a jury and proved beyond a reasonable doubt. In Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the United States Supreme Court held that California’s determinate sentencing law did not comply with this mandate insofar as it permitted imposition of an upper term sentence based upon aggravating factors not found by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [at p. 871].)
In analyzing Cunningham, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black) reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, at p. 812].) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black, supra, at p. 813, fn. omitted.)
“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black, supra, 41 Cal.4th at p. 818; Blakely, supra, 542 U.S. at pp. 301, 303.) This exception is not to be read too narrowly. (Black, supra, at p. 819.) The fact of prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) This encompasses a finding that prior convictions are numerous and of increasing seriousness. (Id. at pp. 819–820.)
Citing federal circuit decisions stating that the prior conviction exception may be found using the preponderance of the evidence standard, Black also concluded that “[t]he high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the [prior convictions exception].” (Black, supra, 41 Cal.4th at p. 820, fn. 9.)
Applying Black here, we conclude that defendant was not deprived of his constitutional right to a jury trial by imposition of the upper term. The trial court’s explicit finding that appellant had a history of serious crimes supported imposition of the upper term as it was within the prior conviction exception. (See Black, supra, 41 Cal.4th at pp. 819–820.) As such, there was no right to a jury trial. This single factor rendered defendant eligible for an upper term sentence, and the trial court was free to consider other factors in imposing such a sentence. (Id. at p. 813.)
Appellant also contends that the failure to include the aggravating factors relied upon in increasing his sentence to the upper term in the charging documents violates the notice requirement of due process. Appellant cites no authority supporting this contention and we have found none. Black states: ‘“Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate indictment, jury trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’” (Black, supra, 41 Cal.4th at p. 813, italics added.) The trial court was properly engaging in judicial factfinding in determining the aggravating factor within the prior conviction exception. Furthermore, appellant was given notice of the aggravating factors in the prosecution’s sentencing memorandum filed days before the sentencing hearing. No particular form of notice is required so long as the defendant has been provided adequate notice to allow him a reasonable opportunity to present a defense. (People v. Valladoli (1996) 13 Cal.4th 590, 607.)
DISPOSITION
The conviction of count 6 is reversed and the judgment is otherwise affirmed. On remand, the trial court is directed to modify the abstract of judgment accordingly.
We concur:
BOREN, P. J., ASHMANN-GERST, J.