P. v. Boyd
Filed 5/30/13 P. v. Boyd CA2/8
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
STEPHEN BOYD,
Defendant
and Appellant.
B240590
(Los Angeles
County
Super. Ct.
No. MA051576)
APPEAL
from the judgment of the Superior Court
of
County. Hayden Zacky,
Judge. Affirmed.
Koryn
& Koryn and Sylvia Koryn for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle
and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * * * * * *
Defendant
and appellant Stephen Boyd was convicted by jury of two counts of
two counts of assault with a semi-automatic firearm, and one count of making
criminal threats. Special allegations
that defendant personally used a firearm in the commission of the offenses and
that the crimes were committed for the benefit of a
Defendant
contends the trial court committed prejudicial error by failing to instruct sua
sponte on all elements of the offense of dissuading a witness by force or
threat. Defendant further contends his
prior juvenile adjudication should not
have been used as a qualifying prior to enhance his sentence under the Three
Strikes law. Defendant concedes the
Supreme Court in People v. Nguyen
(2009) 46 Cal.4th 1007 (Nguyen) has
rejected his argument, and that we are bound to follow Nguyen, but seeks to preserve the issue for further
consideration.
We
conclude there was no instructional error with respect to the two counts of
dissuading a witness, and, pursuant to Nguyen,
we reject defendant’s claim of sentencing error. We therefore affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Because
defendant has not raised a substantial
evidence question for review, we summarize only those facts material to the
appellate issues, as well as additional facts for context.
In
August 2010, Tedd Jojola and his mother, Susane Gonzalez, lived with several
other family members at their home in Palmdale, California. The family had been away for a few days, and
when they returned home, the front door had been broken into and was wide open,
and their home had been burglarized.
Several items of property were missing, including a large television,
stereo speakers and a clothes dryer.
They contacted law enforcement and made a report. The sheriff’s deputies that responded stated
they believed it looked like the type of home burglary committed by a
neighborhood gang known as Ballers on Point or Bloods on Point (B.O.P.). Mr. Jojola knew of defendant from the
neighborhood and that his nickname was “Big O.P.†He accompanied the deputies in their patrol car
and pointed out the home where he believed defendant sometimes lived.
On
January 14, 2011, a black van pulled up in front of Mr. Jojola’s home while he
was outside planting in the garden with his mother. He was immediately concerned because, after
the burglary of their home in August, individuals had been driving by their
house, throwing things at the house and yelling at his family, including, “[W]e
didn’t f------ rob your house.â€
The van stopped and defendant got
out of the passenger side, and headed toward Mr. Jojola. Defendant, who was holding a black handgun,
said to Mr. Jojola, “You f------ rat.
You should have never snitched on B.O.P. . . . You’re f------ dead.†Defendant then proceeded to pistol-whip him
with a handgun about his head and face.
Defendant also punched Mr. Jojola on the side of the head and ripped his
shirt, telling him you “should have never told the police where [we] lived
at.†Defendant repeated that he was
going to kill them.
Mr.
Jojola’s mother, Ms. Gonzalez, ran over to her son and tried to push him away
from defendant. Her son looked like he
was going to faint, but they were eventually able to run into the house. Ms. Gonzalez locked the door and looked
through the peephole. Defendant was
still outside pointing the gun in her direction towards the door. Ms. Gonzalez yelled she was going to call
911. Defendant yelled, “[We] ain’t done
with [you] yet.†Ms. Gonzalez then
called 911. Several deputies arrived
within a few minutes, as did an ambulance that took her son to the hospital for
treatment.
Based
on Ms. Gonzalez’s report, a broadcast was put out regarding possible suspects
in the assaults on her and her son, and several deputies on patrol eventually
detained defendant during a traffic stop.
Mr. Jojola later identified defendant in a six-pack photographic
line-up.
Defendant, by his
own admission during a conversation with a patrol officer, was a member of the
B.O.P. gang, and has several gang-related tattoos. B.O.P. is an active gang in the Palmdale
area, with some 200 documented members, primarily engaged in vandalism,
narcotics sales, assaults, vehicle theft and burglaries. The gang’s color is red and they have
recognized gang signs and symbols, including dollar signs and dice.
Defendant
was charged by amended information with two counts of dissuading a witness by
force or threat (Pen. Code, § 136.1, subd. (c)(1))
semi-automatic firearm (§ 245, subd. (b)) (counts 2 and 4), and one count of
making criminal threats (§ 422) (count 5).
Personal use of a firearm and criminal street gang special allegations
were alleged as to all five counts (§§ 186.22, subd. (b)(4)(C), 12022.5, subd.
(a)). It was further alleged defendant
had suffered a prior juvenile adjudication in 2004 for robbery (§ 211) within
the meaning of section 667, subdivision (b), and section 1170.12, subdivisions
(a) through (d).
Following
a jury trial, the jury found defendant was guilty of all counts and found true
the special allegations that defendant personally used a firearm and acted for
the benefit of, in association with, or at the direction of a criminal street
gang. In a
defendant waived his rights to a jury and court trial and admitted the prior
juvenile adjudication. The court
sentenced defendant to a state prison term of 48 years to life, with 323 days
of presentence custody credit, and ordered payment of various fines and fees.
Defendant’s
notice of appeal was rejected for filing by the superior court as
untimely. This court granted defendant’s
application for relief. This appeal
followed.
DISCUSSION
There Was No
Instructional Error.
Defendant contends
the trial court failed to discharge its duty to sua sponte instruct the jury as
to the specific intent required for the offense of dissuading a witness by
force or threat (counts 1 and 3).
Specifically, defendant argues the modified version of CALCRIM No. 2623
failed to instruct the jury on the requisite specific intent for a felony dissuading
a witness count brought pursuant to subdivision (c)(1) of section 136.1. We exercise our independent judgment in
determining whether the trial court fulfilled its sua sponte duty to instruct
on all the general principles of law governing the case. (People
v. Posey (2004) 32 Cal.4th 193, 218.)
We reject defendant’s claim of error.
The court instructed the jury with
both CALCRIM No. 2622 and CALCRIM No. 2623 regarding the offense of dissuading
a witness, as it was required to do. The
court read these instructions to the jury along with all the other instructions
before counsel delivered their closing arguments, and the court sent a set of
the instructions, printed in landscape format, into the jury room when the case
was submitted to the jury for deliberations.
The printed versions of CALCRIM Nos. 2622 and 2623 appear as follows:
“2622. Dissuading a Witness
“The defendant is
charged in Counts 1 and 3 with dissuading a witness by force or threat of
force.
“To prove that the
defendant is guilty of this crime, the People must prove that:
“1. The defendant tried to discourage Tedd
Jojola and/or Susana
Gonzalez
from cooperating or providing information so that a
complaint could be
sought and prosecuted, and from helping to prosecute that action;
“2. Tedd Jojola and/or Susana Gonzalez was a
witness or crime
victim;
“AND
“3. The defendant knew he was trying to
discourage Tedd Jojola
and/or Susana Gonzalez from causing
an arrest and/or
prosecution and intended to do so.
“As used here,
defendant
reasonably believed
to be someone:
◠“Who knows about the existence or
nonexistence of facts
relating to a crime;
“OR
◠“Who has reported a crime to a peace officer.
“A person is a victim
if there is reason to believe that a federal or state crime is being or has
been committed or attempted against him or her.
“It is not a defense that the defendant was not successful in
preventing or
discouraging the witness or victim.
“It
is not a defense that no one was actually physically injured or otherwise
intimidated or dissuaded.â€
“2623. Dissuading a Witness by Threat of Force
“If you find the
defendant guilty of dissuading a witness, you must then decide whether the
People have proved the additional allegation that the defendant used or threatened
to use force.
“To prove this
allegation, the People must prove that:
“The defendant used
force or threatened, either directly or indirectly, to use force or violence on
the person or property of a witness or victim.
“The People have the
burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you
must find that this allegation has not been proved.â€
Defendant
does not raise any specific objection to the form of CALCRIM No. 2622. Defendant’s claim of error is that CALCRIM
No. 2623 did not repeat the specific intent element that was already included
in CALCRIM No. 2622. Defendant argues
that “[n]othing in CALCRIM No. 2623 told the jury that the force or threat of
force had to be used with the specific intent of preventing or dissuading a
witness from testifying.†The specific
intent requirement for the offense of dissuading a witness is plainly set forth
as element number three in CALCRIM No. 2622:
“The defendant knew he was trying to discourage Tedd Jojola and/or
Susana Gonzalez from causing an arrest and/or prosecution and intended to do
so.†The Bench Notes to the instruction
so provide. “Because the offense always
requires specific intent, the committee has included the knowledge requirement
with the specific intent requirement in element 3.†(Judicial Council of Cal., Crim. Jury Instns.
(2012) Bench Notes to CALCRIM No. 2622, p. 544.) We are not persuaded the court was required
to repeat this phrase in the course of reading and delivering the printed
CALCRIM No. 2623.
No
jury hearing these two instructions read aloud by the court, one right after
the other, reasonably could be confused about whether defendant could be guilty
of dissuading a witness by force or threat if they found defendant
from causing an arrest and/or prosecution.
Nor would any reasonable jury reading the printed form of the
instructions in the jury room be confused on this point. Defendant’s argument would have us slice and
dice the instructions as if each one were heard and understood in
isolation. Defendant ignores that the
court instructed the jury to “[p]ay careful attention to all of these
instructions and consider them together.â€
(People v. Musselwhite (1998)
17 Cal.4th 1216, 1248 (“‘“[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of
parts of an instruction or from a particular instruction.â€â€™ [Citation.]â€)
The instructions,
viewed as a whole, plainly connected the allegations of threats and force to
the offense of witness dissuasion.
CALCRIM No. 2623, as given, unequivocally directed the jury that
witness dissuasion (the elements of which were set forth in CALCRIM No. 2622),
then the jury had to determine whether the prosecution had proved beyond a
reasonable doubt the additional allegation of whether defendant used force or
threatened to use force in so acting.
The jury was also instructed on reasonable doubt (CALCRIM No. 220),
circumstantial evidence of intent or mental state (CALCRIM No. 225), and the
requirement of their being a union of act and intent (CALCRIM No. 252), among
other instructions.
The
threats made to both victims were unambiguously directed to their having
reported information to the police about the burglary, defendant’s status as a
possible suspect, and cooperating with law enforcement’s investigation. Mr. Jojola testified that defendant said,
“You f------ rat. You should have never
snitched on B.O.P. . . . You’re f------
dead,†and defendant then proceeded to pistol-whip him with a handgun. Mr. Jojola also stated that defendant told
him that he “should have never told the police where [defendant and his
accomplices] lived at. And he said that
he was going to kill us.†These were not
ambiguous threats that a reasonable jury could have interpreted as menacing but
not necessarily related to dissuading Mr. Jojola and Ms. Gonzalez from
cooperating with law enforcement.
For
the jury to accept that defendant made the threats testified to by Mr. Jojola
and Ms. Gonzalez, as they did, necessarily means the jury found the threats
were made with the requisite specific intent.
(See People v. Brenner (1992)
5 Cal.App.4th 335, 339 [instruction that dissuading a witness is general intent
crime was error, but was harmless beyond a reasonable doubt because statement
that “‘if [the victim] called the police, [the defendant] would kill’†him was
unambiguous as to intent such that if jury believed defendant made statement,
they found the requisite specific intent]; People
v. Jones (1998) 67 Cal.App.4th 724, 727-728 [same]; see also
1211-1212.) The jury instructions
therefore could not have misled the jury as to the essential element of
specific intent.
The Prior
Strike.
Defendant raises a
constitutional challenge to the use
of his 2004 juvenile adjudication for robbery as a prior conviction for sentence
enhancement purposes under California’s Three Strikes law. However, defendant acknowledges that
expressly held that despite the lack of a right to a jury trial in a juvenile
adjudication, a prior juvenile adjudication is properly considered for sentence
enhancement purposes. (
preserve his right to challenge the holding in Nguyen. We are bound to follow
Supreme Court precedent (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore do
not discuss the issue further.
DISPOSITION
The judgment of conviction is
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
name="_ftn1" title="">[1] All
further undesignated section references are to the Penal Code.
