People v. MoronesPeople v. Morones
- Reporters:
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- Before:
- Earl, Hull, Mesiwala
On appeal, defendant contends that his witness dissuasion convictions under
FACTUAL AND LEGAL BACKGROUND
In August 2020, defendant‘s 16-year-old son Anthony and 14-year-old daughter Inez got into an argument. Angry, Anthony went to his bedroom and threw one of his shoes at a wall.2
Defendant, who had been in the bathroom across the hall from the bedrooms, came out and yelled at the teenagers to stop fighting before he returned to the bathroom. No one else was home.
A short time later, Inez and Anthony heard gunshots in the bathroom. Inez saw defendant leave the bathroom with a gun.3 Anthony told defendant to leave the house.
Timothy Gaea, a teacher at the elementary school across the street from defendant‘s house, was in his classroom with the principal when he heard two gunshots. About a minute later, he saw an adult male walk out of the house with Anthony at the door, “shooing” him out. The adult male pointed a gun at Gaea before walking away. The school principal called out to Anthony and Inez to inquire if they were okay.
Officer Kaela Ledford was called to the home. When she arrived, no one was there. Officer Ledford contacted Rachel Gonzales—the reporting party—by phone and eventually interviewed her, Anthony, and Inez at the house. Officer Ledford found three shell casings outside and below the bathroom window, with no dirt, weathering, or oxidization, which indicated to Officer Ledford they were recently expelled from a firearm. There was a hole in the eave above the bathroom window with fresh splintering. A screen to the bathroom window had a large rip in it.
That night, Rachel Gonzales returned to the house with Inez and Anthony. She saw defendant was there and called the police. Officers arrived and arrested defendant.
While in jail awaiting his preliminary hearing, defendant spoke with Anthony and Inez by phone multiple times, despite the existence of a protective order not to have contact with them while in jail.
On September 1, 2020, the prosecutor charged defendant with grossly negligent discharge of a firearm (
A jury found defendant guilty as charged on counts 1, 4, 5, and 6, and guilty of the lesser included offense of misdemeanor child endangerment on counts 2 and 3.
Defendant filed a motion for a new trial arguing, in part, that the People failed to prove beyond a reasonable doubt that he dissuaded a witness from testifying at a preliminary hearing or trial. He argued that the evidence only showed that he asked the children to change their account of the incident. The trial court denied the motion, finding “there was sufficient evidence to justify
On January 3, 2022, the trial court found all prior conviction allegations true. The same day the court sentenced defendant to an aggregate third-strike sentence of 25 years to life, consisting of concurrent sentences of 25 years to life on counts 1, 5, and 6, a concurrent two years on count 4, and a concurrent 364 days each on counts 2 and 3.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Dissuading Witnesses
Defendant argues that as a matter of law, the evidence cannot sustain his convictions for preventing or dissuading a report to law enforcement pursuant to
A. Additional Background
1. Calls with Inez
On September 22, 2020, at 12:27 p.m., after his arrest and formal charges having been filed against him, defendant and Inez spoke by phone. During that call, the following exchange took place:
“[Inez]: Nah.
“[Defendant]: Well, then what the fuck would you say that for? Hey, how‘d your Jordans go?
“[Inez]: I didn‘t say . . . .”
On September 29, 2020, defendant and Inez spoke by phone again. After defendant asked her to go somewhere where nobody could hear her, the following conversation took place.
Defendant: “What‘d you tell the cops?
“[Inez]: I just told ‘em that - well, I just told ‘em that you were just in the bathroom and you just shot the gun. I didn‘t tell them that you had a gun. They just must have heard me wrong because I told ‘em that you didn‘t have a gun.
“[Defendant]: Hey, and you said I was in the bathroom and I shot it?
“[Inez]: Yeah.
“[Defendant]: And you told ‘em - uh, did you see me?
“[Inez]: No. [¶] . . . [¶]
“[Defendant]: So what‘s up? Mom [sic], you never seen me shoot a gun, man. Can you ma- when they come through, can you - can you swap it out for me and just be like - be like I don‘t know, many, you guys - you guys c- you gotta make up a big ass story that it was a lie please.
“[Inez]: Yeah, dad, I‘ll do that.
“[Defendant]: Are you or what, man? Are you with me? Do you want me to be here forever?
“[Inez]: Yes, I‘m with you. You‘re my fucking best friend, man. [¶] . . . [¶]
“[Defendant]: Hey, no, for real, look, um, they gonna have - they gonna have somebody come and talk to you again.
“[Defendant]: To try to get the - just to get your story again and shit like that and then they‘re gonna try to make it - they‘re - they‘re trying - you‘re the only one - you‘re the only reason why, fool, that - um, see they got head phones too.
“[Inez]: Mm-hm. [¶] . . . [¶]
“[Defendant]: But all I need is for you guys to do is just be like I don‘t know - I don‘t know if - if one of you guys said, like, you guys seen me with a - you didn‘t tell the cops you seen me with a gun?
“[Inez]: No.
“[Defendant]: Did Anthony maybe tell ‘em that you guys seen me with a gun the day before or the - nothing like that?
“[Inez]: No.”
Inez testified that she understood defendant requested that she lie by telling law enforcement that he did not have a gun.
2. Calls with Anthony
On September 22, 2020, defendant spoke with Anthony by phone:
Defendant: “I - I know - I know but, uh, I can‘t understand why - what - what happened. Can you tell me what h- what‘d you guys tell - what‘d you tell - what‘d you tell the people?
“[Anthony]: When you shot off the gun and then left, everybody came over here, like, the school, the teachers, principals, everybody and then my grandma . . . . [¶] . . . [¶]
“[Defendant]: But you want me to go away forever?
“[Anthony]: No, I‘m gonna drop all them charges when I go to your court. I‘m gonna tell ‘em how everything was a lie but . . .
“[Defendant]: Yeah.
“[Anthony]: . . . whatever Inez tells them, that‘s Inez though. I - I‘m gonna drop all my charges with you, Pop. Man, I - I didn‘t - I didn‘t want you
“[Defendant]: Yeah.
“[Anthony]: . . . and you come out right, man. I don‘t want you to be like this no more. [¶] . . . [¶]
“[Defendant]: I mean, I know - I know - uh, I don‘t know, did you tell guns - did you tell the cops you seen me with a gun?
“[Anthony]: No, I didn‘t tell ‘em none of that. I just told them you just was in the bathroom and I threw something at the wall and then you came out tripping and then you went back in there and, like, not even, like, 60 minutes to - 60 seconds to a minute you shot off the gun. And they was like, ‘How many times?’ And I was like, ‘Three or four times.’ That‘s it. And then lady kept on trying to ask me, asking me, asking me and I was like, ‘Man, I don‘t wanna talk to you guys no more. I said what I said. I‘m done.’ And then she started talking to Inez and Inez told her whatever - whatever she had to say to them. [¶] . . . [¶]
“[Defendant]: I know - no, but check it out - but you guys never seen me actually pull a gun out and shooting - shoot it fool, like, you – ‘cause you thought I was in the bathroom, you thought it was me, you feel me, like so – so, like, you can‘t really physically say you seen me with a gun shooting it, you know what I‘m saying?
“[Anthony]: Yeah
“[Defendant]: And that‘s facts. Nigga, that‘s facts. And I‘m not trying to - I‘m not trying to say nothing but, nigga, I was in the bathroom dad [sic], you know what I‘m saying, d- you didn‘t even see me shoot, you didn‘t see me with a gun, you feel me? I don‘t own a gun.
“[Anthony]: Yeah. [¶] . . . [¶]
“[Defendant]: . . . it‘s - it‘s - it‘s all upon you, you feel me? But it‘s just - it‘s just - it‘s just a fucked-up situation but do know I love you, nigga, and just keep - keep that in mind though. You never seen me with a gun, my nigga. You never seen me shoot that. You know what I‘m saying, you - you could say I was in the bathroom, you heard shots, and, yeah, I did it but you never seen me with your eyes me pull out a gun and shoot. Did you?
“[Anthony]: Yeah. No.
On September 29, 2020, defendant spoke with Anthony at 7:04 p.m. During that call, defendant told Anthony, “No, just be like - just be like - be like, man, my dad‘s on drugs and ev- everything I made up was - uh, everything I told you was a fucking lie, you feel me?” Defendant told Anthony what he expected the investigators to say when Anthony changed his story and that they might tell Anthony he could go to jail for lying. When Anthony confirmed he planned to deny his previous statements, defendant told Anthony to keep telling investigators that his dad was on drugs, “but that‘s all you gotta keep telling them ‘cause they ain‘t your friends, my nigga.” Later, defendant said to Anthony, “all you gotta keep saying is, man, I don‘t know, I lied. I said that . . . because my dad was on drugs, that‘s it, you feel me?” Anthony responded, “Yeah.”
Later in the call, defendant asked Anthony “what you gonna tell them niggas when they come questioning you?” Anthony responded:
Anthony: “Mm, when they come talk to me, I‘m gonna tell ‘em what you told me. I‘m just gonna be like he needs help. That‘s it. That‘s all I‘m gonna say. I ain‘t gonna have nothing else to say. (Unintelligible). [¶] . . .[¶]
“[Defendant]: Yeah, but what‘d I do? I didn‘t even do nothing though. What are you talking about I did what I did?
“[Anthony]: I‘m not saying like that. I‘m just saying, like, man, I said what I said and, like, if . . .
“[Defendant]: Yeah, but l- but listen, you gotta - you gotta choose - you gotta choose your words wisely though because . . .
“[Anthony]: Yeah. [¶] . . . [¶]
“[Defendant]: . . . you told ‘em - you told ‘em I had a hammer, my nigga. You told ‘em I had a gun and I banged it.
“[Anthony]: Yeah.
“[Defendant]: For what reason I have - no reason to understand. I mean, I don‘t know if you seen me with a gun (unintelligible), you feel me, but that‘s what you told ‘em and that‘s what‘s fucking gonna get me banged out.
“[Anthony]: Yeah.
“[Defendant]: And they‘re gonna say did your dad call you and tell you to say this shit and what are you gonna say?
“[Anthony]: I‘m gonna be like hell no, hell no and I never - haven‘t talked to him ever since he got locked up, I never talked to him or anything.
“[Defendant]: That‘s what you say. But you gotta - you gotta really tell ‘em like, man, I - I - I said that shit, I mean, man, he didn‘t do it. Just say that. You gotta be like, man, he didn‘t do that shit just straight the fuck up.
“[Anthony]: All right, Pop, I got you.”
The two spoke again later that same day, at 8:17 p.m.:
Defendant: “Aye and uh fuck it. Make sure you tell these niggas man- you lying. Man make sure you tell them you lied. Just keep telling them that. ‘I fucking lied.’ You got to keep telling them ‘I fucking lied’ man ‘I fucking lied’ nigga damn. Everything I said I should‘ve fucking lied. You gotta keep telling them dad [sic].
“[Anthony]: Alright I will pop, I love you man.
“[Defendant]: And - and you gotta say like man like maybe he got shot at or something. Fuck. I don‘t know. You gotta say some shit. Something nigga. Fuck. Something man. Got damn.
“[Anthony]: I love you man.”
On October 4, 2020, defendant spoke with Anthony again. Anthony protested that Sonny is “getting at me the wrong way. He‘s over here texting at me and shit like, or someth— I‘m supposed to be scared of him or something.” He also said that Sonny “was just getting at me all sideways. I wasn‘t liking that.”
Anthony testified that defendant never threatened him to not testify and he did not know anyone named Sonny.
3. Calls with Third Parties
On September 10, 2020, defendant spoke on the phone to an unidentified female. They spoke about statements made by defendant‘s family members and how people in jail do not like snitches.
Defendant: “Man, whenever you get the chance fly by there and push up on Nez and them.
“[Sonny]: All right, I will, I‘ll do that shit today.
“[Defendant]: Hey, and just tell ‘em, like, hey, y‘all niggas need to be like - y‘all niggas need to be like I don‘t remember saying none of that. Like, just play dumb. You know what I mean?
“[Sonny]: I know, Imma do that shit today fa sho‘. I got you.”
4. Jury Instructions and Closing Argument
As previously noted, the amended information charged defendant in counts 5 and 6 with violating
During a conference on the jury instructions, the prosecutor requested the court to instruct the jury with CALCRIM No. 2622, including alternative 1C. As provided in the pattern instruction, alternative 1C would have instructed the jury that the People must prove, in part, that defendant tried to prevent or discourage Anthony and Inez from cooperating or providing information so that a complaint or information could be sought and prosecuted, and from helping to prosecute that action. (CALCRIM No. 2622.) The trial court agreed to include alternative 1C.
During closing argument, the prosecutor characterized defendant as “constantly telling these children to lie for him” and provided examples of this from the conversations. The prosecutor argued, “Also, you have to ask yourselves, why would he ask them to lie for him? Why does he have to ask them to lie for him? Why? Because he did it and he had a gun and he shot it. That‘s why he‘s asking them to lie for him. [¶] And this is obstructing justice. This is obstructing the criminal justice system. This is asking, you know, a 14-year-old and a 16-year-old to come in here and make it up, change the story, swap it out, tell them something else so that I can get away with it.”
Despite the trial court‘s agreement to instruct the jury with alternative 1C, the court instead instructed the jury with alternative 1A as follows: “To prove
The verdict form for count 5 (regarding Anthony) states that the jury found defendant guilty of violating
B. Analysis
In this case, it is undisputed that while the information alleged defendant violated
The People contend that, because the jury was instructed on considering the evidence under
The People also argue that the evidence supports a conviction under either
Defendant argues
The People disagree and, citing to People v. Pettie (2017) 16 Cal.App.5th 23, 54-55, argue the statute prohibits dissuasion of any report, including future or postarrest supplemental reports. The People argue that the evidence is sufficient to support a conviction under
The issue is one of statutory construction. As such, “our fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ’ “in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ ” (People v. Murphy (2001) 25 Cal.4th 136, 142.) We review issues of statutory construction de novo. (People v. Gonzales (2018) 6 Cal.5th 44, 49.)
We agree with the court in People v. Fernandez (2003) 106 Cal.App.4th 943 (Fernandez) that common usage of the word ” ‘report’ ” does not support the People‘s position that ” ‘report’ ” necessarily includes ” ‘testimony.’ ” (Id. at p. 948.) ” ‘[R]eport’ ” means ” ‘an account presented’ ” (see ibid., citing American Heritage Dict. (3d college ed.) p. 1158), either written or spoken, while ” ‘[t]estimony,’ on the other hand, is more specifically defined as a ‘declaration by a witness under oath, as that given before a court.’ ” (Fernandez, at p. 948, citing American Heritage Dict. (3d college ed.) p. 1401.) “Victimization” means “[t]o
Contrary to defendant‘s claim, the statutory language does not support the conclusion that
According to the People, defendant‘s conduct satisfies
Anthony and Inez reported they heard gunshots coming from the bathroom where defendant was located. Shell casings that appeared to be freshly
The People assert, in the alternative, that the facts support a conviction for
While a violation of
Defendant maintains the prosecutor‘s closing argument, in which she highlighted portions of the jail calls and characterized them as proof that defendant was encouraging his children to lie, was consistent with the evidence, but not with the charges. Citing to People v. Womack, supra, 40 Cal.App.4th 926 (Womack) and Fernandez, supra, 106 Cal.App.4th 943, defendant claims that where, as here, the evidence only establishes that defendant sought to alter the future statements or testimony to his favor, his convictions for dissuading witnesses must be reversed. We agree.
”
Womack, supra, 40 Cal.App.4th 926 is instructive. In that case, the defendant appealed from a judgment of conviction after a jury found him guilty of premeditated attempted murder and attempting to induce a witness to give false or withhold true testimony under
We conclude defendant‘s repeated and consistent attempts to get his children to lie to law enforcement regarding their victimization did not constitute a violation of
II
Discharge of a Firearm
Defendant argues that while instructing the jury on count 1—grossly negligent discharge of a firearm—the trial court erred by failing to include the elements of intent and gross negligence. He argues the issue is cognizable on appeal without raising it in the trial court because the instruction affected his substantial rights, and he was prejudiced by the error. The People argue: (1) the issue is forfeited; (2) the jury instructions as a whole were complete; and (3) any error was harmless. We conclude that the trial court erred in failing to instruct the jury on the element of intent but that the error was harmless.
An appellate court may review any instructional error even without an objection in the trial court if it “affected the substantial rights of the defendant.” (
The jury was instructed with CALCRIM No. 970, which sets forth the elements of grossly negligent discharge of a firearm, including the definition of gross negligence.8 It was also instructed with CALCRIM No. 252—“Union of Act and Intent: General and Specific Intent Together,” but only as to counts 2 through 6 (child endangerment, felon in possession of a firearm, and dissuading a witness). CALCRIM No. 252 instructed that the crimes and allegations charged require proof of the union, or joint operation, of act and wrongful intent. The instruction identified all charged offenses except count 1—grossly negligent discharge of a firearm—as either a general or specific intent crime and referred the jury to the instruction for the particular offense to explain the corresponding act, specific intent, or mental state.9
Defendant claims the people were required to prove that defendant “actually knew the gun would fire in a grossly negligent manner at the time he pulled the trigger,” and that the trial court erred in not instructing the jury that “it must find that, at the precise time when the act of discharging the fire[arm] was done, it was done knowingly and deliberately in a grossly negligent manner.” We disagree on both points. The elements of grossly negligent discharge of a firearm under
Defendant also contends the trial court erred in not giving CALCRIM No. 253 as relevant to the union of act and intent for count 1. As referenced above, the trial court did instruct the jury with CALCRIM No. 970, which includes the same language that CALCRIM No. 253 contains with respect to the definition of gross negligence. We therefore find no error as the elements of knowledge and gross negligence were adequately conveyed to the jury through CALCRIM No. 970.
The instructions are defective, however, in that grossly negligent shooting is not identified as a general intent crime in addition to requiring a mental state. (People v. Ramirez (2009) 45 Cal.4th 980, 990 [grossly negligent discharge of a firearm is a general intent crime requiring only willfully firing a gun].) The jury was not instructed, as it was for the other general intent offenses, that “it is not required that [defendant] intend to break the law” in order to commit grossly negligent discharge of a firearm. However, we find the omission is harmless beyond a reasonable doubt.10 (Chapman v. California, supra, 386 U.S. at p. 24; see People v. Schuller (2023) 15 Cal.5th 237, 257 [”Chapman review applies not only to instructions that omit an element of the offense, but also to instructions that provide an incomplete or misleading description of what is necessary to establish an element of the offense“].) The definition of grossly negligent discharge of a firearm required the jury to find that “[t]he defendant intentionally shot a firearm.” (CALCRIM No. 970.) This is essentially what must be conveyed for a general intent crime. “[G]eneral intent means that the ‘person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act . . . .’ [Citation.]” (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1380-1381.) Because the essence of general intent was conveyed to the jury, separate instructions on the concurrence of act and intent required for grossly negligent discharge of a firearm would not have produced a verdict more favorable to defendant. (See People v. Benson, supra, 52 Cal.3d at p. 801 [if the meaning of the instructions communicated to the jury was not objectionable, the instructions cannot be deemed erroneous].)
III
Sentencing
Defendant argues that his concurrent sentences for negligent discharge of a firearm and child endangerment cannot stand because they are all based on the single act of discharging the firearm. He argues the matter must be remanded to allow the trial court the opportunity to apply
Though a person may be convicted of more than one crime for the same act,
“The question of whether
Here, the parties agree defendant‘s convictions for negligent discharge of a firearm and child endangerment stemmed from the same act of discharging the firearm. Yet another exception exists allowing us to forego delving into divisibility or defendant‘s intent and objective. Multiple punishments are not proscribed if a defendant commits an act of violence by a means likely to cause harm to several persons. (People v. Calles (2012) 209 Cal.App.4th 1200, 1215-1216; see also People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631 [“There is a multiple victim exception to
Defendant contends the multiple-victim exception does not apply because it is not listed as a violent crime in
The crime of grossly negligent discharge of a firearm prohibits any person from willfully discharging a firearm in a grossly negligent manner which could result in injury or death. (
We also conclude that defendant‘s commission of child endangerment, based on the grossly negligent discharge of a firearm, was a violent crime for purposes of the multiple-victim exception to
DISPOSITION
Defendant‘s convictions on counts 5 and 6 are reversed, and the matter is remanded to the trial court for full resentencing on defendant‘s remaining convictions and sentencing enhancements. The trial court is directed to
/s/
EARL, P. J.
We concur:
/s/
HULL, J.
/s/
MESIWALA, J.