Opinion
The victim in this case, in which defendant Jonathan Velazquez was charged with three counts of criminal threats (Pen. Code,
BACKGROUND
Defendant was charged by information with three counts of criminal threats (§ 422) and three counts of dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2)); the victim in each count was Debbie Porter.
The case was tried before a jury. Jury selection took up the entire first day of trial. The following day, both sides made opening statements and the prosecution presented three witnesses: the police detective who was a witness to the first incident and investigated the other incidents, the police officer who arrested defendant, and a police officer who testified as an expert on gangs.
Detective Boris Oliva testified that he was asked to assist another detective in an investigation involving criminal threats against Porter made by Sonia Rojas, a member of the Rancho San Pedro gang. He explained that two other members of that gang, Rommel Lennigan and Michael Sambrano, had been arrested on March 1, 2009, for putting a gun to Porter’s head and for burglary. Porter came into the police station on March 3, nervous and “very shaken up,” and reported threats made against her by Rojas.
While Porter was talking to Detective Oliva, she received a couple of phone calls and became very agitated. She told Detective Oliva that Turtle
Detective Oliva also testified about a followup visit with Porter he made on March 11, 12, or 13 at Porter’s daughter’s home, where Porter was staying because she was too scared to go back to her house. The prosecutor asked Detective Oliva, “[Wjhen you met with [Porter] at her daughter’s place, did she inform you as to any additional threats made to her by Turtle?” Detective Oliva answered, “Yes, sir, she did.” But when Detective Oliva started to testify about what Porter told him, defense counsel objected on hearsay grounds and that objection was sustained. Detective Oliva then testified that Porter showed him her cell phone, and Detective Oliva observed several calls from the same number as the number Porter called in Detective Oliva’s presence on March 3 in response to Turtle’s voice mail. Detective Oliva observed there were at least two calls on March 9 and at least three calls on March 10. Detective Oliva said that, during his visit, Porter “was a wreck essentially” and was still very scared. He said he told Porter that he would relocate her if she wanted him to, but she found an apartment on her own outside of San Pedro.
Police Officer Robert Castruita testified after Detective Oliva about the circumstances of defendant’s arrest. His testimony was followed by Officer Andrew Gonzalez, who testified as an expert on criminal street gangs and specifically the Rancho San Pedro gang. Officer Gonzalez testified that defendant was a member of the Rancho San Pedro gang, and that the primary activities of the gang included witness intimidation and criminal threats. The prosecutor set forth a hypothetical scenario based upon the facts of this case, and asked Officer Gonzalez whether, in his opinion, the threats and intimidation were for the benefit of, in association with, or at the direction of the Rancho San Pedro gang. Officer Gonzalez opined that they were.
Detective Oliva testified that Porter was at the courthouse, in the District Attorney’s office, during jury selection. She received a phone call in the midaftemoon, and told Detective Oliva that she was just informed that her “Dad” had passed away.
Based on Detective Oliva’s testimony, the prosecutor asked that Porter be deemed unavailable, or alternatively, that the court grant a continuance. The court said it would not consider a continuance, because the prosecutor had represented that he had no idea where Porter was, and he could not say how long it would take to find her. Turning to the issue whether Porter was unavailable, the court asked whether Porter was ever under subpoena or ordered by the court to appear. The prosecutor admitted that she was not.
After making its ruling, the court asked, outside the presence of the jury, if the prosecutor had any other witnesses. The prosecutor indicated that he did not, and that the People would rest.
Defendant testified that Porter was a friend of his, and that he had had several phone conversations with her since September 2008. He said that Porter called him after the March 1, 2009 incident and asked him for advice about what to do. He testified that he told her to “stay away from these people” because she would not want to get in trouble with them. He said that he never threatened her, did not threaten to kill her, and did not tell her to drop the charges against any gang member. He admitted that he was a member of the Rancho San Pedro gang when he was younger, and that he had a “Rancho” tattoo across his chest and an “RSP” tattoo on his right forearm, but he said he had not had any contact with gang members since 2005.
After defendant finished testifying, the court asked the prosecutor if there were any rebuttal witnesses. The prosecutor asked for a 10-minute recess so he could make a phone call. After the recess, the prosecutor told the court that he had reached Porter’s daughter, who confirmed Porter’s location, and that Detective Oliva was heading to that address to pick Porter up and bring her to court; Detective Oliva believed they would be there in one hour, which would be 4:00 p.m. The prosecutor asked the court to ask the jury to wait until 4:00 p.m. or, in the alternative, allow him to call Porter as his rebuttal witness on Monday morning, i.e., the next court day. Before making its decision, the court granted defense counsel’s request to make a motion. Defense counsel then moved for acquittal under section 1118.1 on counts 3 through 6 (i.e., all of the counts except those involving the Mar. 3 phone call) on the ground of insufficiency of the evidence.
Porter appeared and testified on Monday morning. She testified that, at 12:30 a.m. on the morning of March 1, 2009, she was at a neighbor’s house when two men came in, put a gun to her head, and forced her to go to her house, a few buildings away. They told her she had two minutes to go inside and bring out her gun. She went inside, went into the bathroom, and called 911. The police came, caught the men in a nearby alley, and she identified them as the perpetrators. Within hours, she was being threatened by people banging on her door.
One of the people threatening her was defendant. She knew defendant from the neighborhood, and had had a few contacts with him before the March 1 incident; she had asked him for help in getting some members of the Rancho San Pedro gang to stop harassing her son. She had asked for his help at that time because he had told her that he was in the Rancho San Pedro gang, and said “[h]e felt like he was running the neighborhood.”
Porter testified that on March 3, 2009, she went to the police station for help because defendant kept calling and threatening her. While she was there, she got a call from him that she let go to voice mail. She listened to the voice mail and called defendant back on speakerphone in Detective Oliva’s presence. Defendant identified himself and said that his homeboys went to court, and that one of them was looking at 27 years. He told her to go to the 77th Division and drop the charges, or she was going to get smoked (which she understood to mean that she would be killed). She considered that a threat, and she was scared for her life.
Porter continued to get calls from defendant’s number over the next week, but she did not answer them and did not contact defendant. She did answer a call from defendant on March 9, however, because the number was blocked. Defendant told her during that call to go to the police department and drop the charges against his homeboys or she would be dead. He called again the next day, on March 10, and again told her to drop the charges or she would
After Porter testified, the prosecution rested, and the case went to the jury.
DISCUSSION
Defendant contends on appeal that (1) the convictions on counts 3 through 6 must be reversed because the trial court erroneously denied his motion for acquittal on the ground of insufficient evidence; (2) the convictions on counts 2, 4, and 6 (the dissuading a witness counts) must be reversed because section 136.1, subdivision (b) is directed at prearrest efforts to prevent a crime from being reported, but the incidents at issue took place after Sambrano and Lennigan had been arrested; (3) the trial court erred by imposing a 10-year gang enhancement in counts 1, 3, and 5 because the crime of criminal threats is not a violent felony subject to a 10-year enhancement under section 186.22, subdivision (b)(1)(C); and (4) the trial court miscalculated his presentence actual custody credit and failed to award him presentence local conduct credit.
A. Denial of Defendant’s Motion for Acquittal
Section 1118.1 provides in relevant part: “In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on
The Supreme Court summarized in People v. Stevens (2007) 41 Cal.4th 182 [59 Cal.Rptr.3d 196, 158 P.3d 763] the standards to be applied by the trial court in deciding a motion made under section 1118.1 and by the appellate court in reviewing the trial court’s ruling. The court explained: “ ‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” ’ [Citation.] ‘The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.] The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] The sufficiency of the evidence is tested at the point the motion is made. [Citations.] The question is one of law, subject to independent review. [Citation.]” (41 Cal.4th at p. 200.)
The counts at issue here allege that on March 9, 2009, and on March 10, 2009, defendant made criminal threats to Porter and attempted to dissuade her from prosecuting a crime. To prove the crime of criminal threat, the prosecution must establish the following elements: “(1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonable]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228 [109 Cal.Rptr.2d 315, 26 P.3d 1051].) To prove the crime of dissuading a witness from prosecuting a crime in violation of
At the time of defendant’s motion for acquittal in the present case, the only evidence before the court regarding what occurred between defendant and Porter on March 9 and 10 was Detective Oliva’s affirmative response to the prosecutor’s question, “[W]hen you met with [Porter] at her daughter’s place, did she inform you as to any additional threats made to her by Turtle?” and his testimony that he observed the call log on Porter’s phone and saw there had been calls made to her on those dates from the number defendant had used on March 3 to threaten her and attempt to dissuade her from prosecuting his fellow gang members. At best, the trier of fact could infer from this evidence that defendant called Porter’s phone on those dates. It is insufficient, by itself, to establish that on those dates “defendant ‘willfully threatened] to commit a crime which will result in death or great bodily injury to another person’ ” (People v. Toledo, supra, 26 Cal.4th at pp. 227-228), or that he attempted to dissuade Porter from “[c]ausing a complaint ... to be sought and prosecuted, and assisting in the prosecution thereof’ (§ 136.1, subd. (b)(2)).
The Attorney General argues, however, that this evidence was sufficient to support the counts at issue because (1) section 136.1 is a “continuous course of conduct” offense, so the trial court could also consider the evidence regarding defendant’s March 3 call with Porter; (2) defendant had already threatened to kill Porter on March 3, and Detective Oliva testified that Porter was “a wreck” when he visited her on March 11, 12, or 13, when she informed him of “additional threats,” so the court reasonably could infer that defendant also threatened to kill her on March 9 and 10; and (3) the court could conclude that defendant’s testimony in which he denied threatening or trying to dissuade Porter was false, and thus infer that the crimes he denied committing had in fact occurred. We are not persuaded.
The Attorney General’s first argument fails because defendant was charged with three separate counts, not a single count encompassing numerous threats made over two or three months as was the case in People v. Salvato (1991) 234 Cal.App.3d 872 [285 Cal.Rptr. 837], the case upon which the Attorney General relies. Having chosen to charge defendant with dissuading a witness on three separate days, in three separate counts, the prosecution had the burden to show that defendant attempted to dissuade Porter on each of those days.
The last inference the Attorney General posits—i.e., that the court could infer from its conclusion that defendant’s testimony denying wrongdoing was false that defendant actually committed the crimes—is unpersuasive. The prosecution bears the burden to prove each element of the crimes charged. (People v. Belton (1979) 23 Cal.3d 516, 520 [153 Cal.Rptr. 195, 591 P.2d 485].) That burden is not met through mere disbelief of defendant’s denial that he committed the crimes. “A reasonable inference ' “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.” ’ [Citation.] It must logically flow from other facts established in the action.” (People v. Austin (1994) 23 Cal.App.4th 1596, 1604 [28 Cal.Rptr.2d 885], disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861-867 [103 Cal.Rptr.2d 13, 15 P.3d 234], quoting People v. Morris (1988) 46 Cal.3d 1, 21 [249 Cal.Rptr. 119, 756 P.2d 843].) Disbelief of defendant’s testimony, without more, does not constitute “other facts” from which logically flows the conclusion, beyond a reasonable doubt, that defendant did that which he denied doing.
In concluding that the trial court erred by denying defendant’s motion for acquittal because the evidence before the trial court at the time the motion was made was insufficient to support a conviction on counts 3 through 6, we acknowledge that the prosecution’s evidence in rebuttal provided the missing evidence, and thus would support the convictions. We are compelled, however, to reverse the convictions, based upon People v. Belton, supra, 23 Cal.3d 516. In that case, the only evidence presented during the prosecution’s case-in-chief connecting the defendant to the charged crime was testimony by a peace officer regarding an admission by the defendant’s accomplice that implicated defendant. (Id. at p. 519.) The defendant moved for a judgment of acquittal at the close of the case-in-chief, and the trial court denied the motion. (Ibid.) After the defendant rested, the prosecution presented evidence in rebuttal corroborating the accomplice’s statement. (Id. at p. 543 (dis. opn. of Clark, J.).) The Supreme Court held that the defendant’s motion for acquittal was improperly denied because the prosecution failed to present a
B. Sufficiency of Evidence to Support Remaining Dissuading a Witness Count
Defendant contends there was insufficient evidence to support his convictions on the dissuading a witness counts because section 136.1, subdivision (b) applies only to prearrest efforts to dissuade a witness from reporting a crime, rather than attempts to persuade a witness to drop charges after the perpetrators have been arrested, as in this case. We address this argument as to count 2, the only dissuading a witness count that remains, and find it lacks merit.
In making this argument, defendant relies upon People v. Fernandez (2003) 106 Cal.App.4th 943 [131 Cal.Rptr.2d 358]. In that case, the defendant asked the victim to testify falsely at his preliminary hearing. (Id. at p. 946.) The defendant was later charged with, and convicted of, attempting to dissuade a witness under section 136.1, subdivision (b)(1). (106 Cal.App.4th at p. 946.) Division Six of this Appellate District reversed the conviction, concluding that section 136.1, subdivision (b)(1) applies only to efforts to prevent a witness from reporting a crime, and does not apply to efforts to influence a witness’ testimony, which is addressed in section 137. (106 Cal.App.4th at pp. 947-952.) In reaching this conclusion, the appellate court stated that “section 136.1, subdivision (b) punishes a defendant’s pre-arrest efforts to prevent a crime from being reported to the authorities.” (Id. at p. 950.)
Defendant’s reliance on People v. Fernandez is misplaced. The issue in that case was whether subdivision (b)(1) of section 136.1 applied to an attempt to influence a witness’ testimony, not, as in this case, whether subdivision (b)(2) applies to an attempt to influence a victim to drop the charges against a perpetrator.
Unlike section 136.1, subdivision (b)(1), which makes it a crime to attempt to dissuade a crime victim from “[m]aking any report of that victimization to any peace officer ... or to any judge,” subdivision (b)(2) makes it a crime to attempt to dissuade a victim or witness from “[c]ausing a complaint, indictment, information, probation or parole violation to be sought
C. The Trial Court Imposed the Wrong Gang Enhancement in Count 1
Defendant argues the trial court erred by imposing a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) in the criminal threats counts, because that subdivision applies only when the felony conviction at issue is a “violent felony,” and the crime of criminal threats is not a “violent felony.” Defendant contends the enhancement must be stricken. The Attorney General concedes that the trial court was not authorized to impose a 10-year enhancement under that subdivision, but argues that the court could impose a five-year enhancement under section 186.22, subdivision (b)(1)(B), which applies to “serious” felonies.
The Attorney General is correct. Section 186.22, subdivision (b)(1)(B) provides that a five-year sentence enhancement must be imposed if a defendant is convicted of committing “a serious felony, as defined in subdivision (c) of Section 1192.7.” Section 1192.7, subdivision (c)(38) lists as a “serious felony” “criminal threats, in violation of Section 422.” Therefore, on remand, the trial court is directed to strike the 10-year gang enhancement for count 1 and impose a five-year enhancement under section 186.22, subdivision (b)(1)(B).
D. Defendant’s Presentence Custody Credit Must Be Recalculated
Defendant argues the trial court miscalculated his actual custody credit (which should be 288 days, rather than the 287 days awarded), and failed to consider whether he was entitled to local conduct credit under section 4019 or section 2933.1. He contends the matter must be remanded to recalculate his custody credit. The Attorney General concedes both points. We therefore remand the matter to the trial court to correct the actual custody credit by awarding an additional day, and to calculate the conduct credit, if any, to which defendant is entitled.
The judgment as to counts 3, 4, 5, and 6 is reversed, and the trial court is directed to enter a judgment of acquittal on those counts. The matter is remanded for resentencing on count 1 and recalculation of defendant’s presentence custody credit.
Epstein, P. J., and Manella, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 29, 2012, S199252.
Further undesignated statutory references are to the Penal Code.
The information also alleged three other counts, unrelated to the first six counts, involving a different victim. Those counts were dismissed on the prosecution’s motion on the first day of trial.
Rojas was convicted of witness intimidation (§ 136.1, subd. (b)(2)) with a gang allegation (§ 186.22, subd. (b)(1)(C)) in a separate proceeding.
The subscriber to that number was Janet Balanzar, defendant’s girlfriend.
It turns out that the man she called “Dad” was not her father, but was someone with whom she was very close.
Although the reporter’s transcript indicates that defense counsel said he had no other witnesses to call, it is clear from the context that it was the prosecutor who answered the court’s question.
Defendant waived his right to a jury trial on the prior prison term allegation.
Defendant here was charged with, and convicted of, a violation of section 136.1, subdivision (b)(2).
The jury found the gang allegation to be true under both section 186.22, subdivision (b)(1)(B) and (C).