B313410
Cal. Ct. App.May 23, 2022Background
- In Sept. 2019 Porter entered his ex-girlfriend I.B.’s apartment, assaulted her daughter V.B., made sexual comments and forced contact; V.B. escaped and Porter was arrested.
- After the incident Porter sent I.B. a letter asking her to have V.B. “come to court and lie” or to keep V.B. “under [her] control” and not come to court.
- Porter was charged with multiple counts; the jury convicted him of assault to commit a felony (§ 220(a)), simple assault (§ 240), and two counts of attempting to dissuade a witness (§ 136.1(a)(2)). One count (burglary) was dismissed and another charge resolved by plea.
- At a bifurcated bench trial the court admitted Michigan certified records and a presentence investigation report (PSI) and found true a prior Michigan carjacking conviction as a serious felony/strike, imposing second‑strike sentences plus a consecutive five‑year enhancement under § 667(a).
- On appeal Porter argued (1) the evidence was insufficient to sustain two separate § 136.1(a)(2) convictions based on the single letter and (2) the Michigan carjacking prior did not necessarily satisfy California’s carjacking elements. Respondent conceded the first point.
- The Court of Appeal reversed one § 136.1(a)(2) conviction, and reversed the true findings on the prior‑conviction strike, remanding for proceedings consistent with People v. Gallardo to determine whether the plea included admissions of the requisite facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two separate § 136.1(a)(2) convictions are supported by evidence tied to Porter’s letter | Prosecutor tied each count to two distinct statements in the letter (ask V.B. to lie; keep V.B. from coming) | Only one statement actually attempted to prevent/dissuade attendance; the other (ask to lie) does not prove attempt to prevent attendance | Reversed one conviction: only one statement in the letter supports § 136.1(a)(2), so insufficient evidence for two convictions |
| Whether Porter’s Michigan carjacking conviction qualifies as a California serious felony/strike | The trial court found Michigan and California carjacking statutes have same elements; PSI showed the carjacking occurred in victims’ presence | Michigan law does not require presence; no record that Porter admitted facts in PSI as plea basis | Reversed true finding on prior: statutes differ and court could not rely on PSI allegations; remand to determine (per Gallardo) whether plea included necessary admissions |
Key Cases Cited
- People v. Gallardo, 4 Cal.5th 120 (Cal. 2017) (limits sentencing‑court factfinding about prior convictions; court may rely only on facts necessarily found by conviction or admitted by defendant)
- People v. Delgado, 43 Cal.4th 1059 (Cal. 2008) (prosecution must prove sentencing enhancements beyond a reasonable doubt)
- People v. Miles, 43 Cal.4th 1074 (Cal. 2008) (when record is ambiguous, presume prior conviction was for least serious form)
- People v. Crittenden, 9 Cal.4th 83 (Cal. 1994) (standard for reviewing sufficiency of evidence)
- People v. Brown, 11 Cal.App.5th 332 (Cal. Ct. App. 2017) (when prosecution elects a specific act at trial, sufficiency review is limited to that act)
- People v. Fernandez, 106 Cal.App.4th 943 (Cal. Ct. App. 2003) (distinguishing statutory provisions for preventing reports vs. dissuading attendance/testimony)