P. v. Chandler

Filed 6/11/08 P. v. Chandler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant guilty of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), intimidating a witness (Pen. Code, 136.1, subd. (c)(1)), and misdemeanor battery (Pen. Code, 242).^[1] The court sentenced defendant to state prison for a term of three years. Defendant contends (1) the trial court erred by admitting evidence of a prior offense; (2) the evidence that defendant intimidated a witness does not meet the substantial evidence standard; and (3) the trial court did not act with informed discretion when sentencing defendant. We affirm the judgment.

FACTS

1.

FACTS OF THE OFFENSE IN THE INSTANT CASE

In August 2006, the victim lived in the same neighborhood where defendants father lived. Defendant had been visiting his father for approximately two weeks when the incidents at issue in this case occurred. In late August 2006, the victim was in his backyard when a pomegranate was thrown at his motor home, which was parked in front of his house. When the victim looked over the fence, he saw defendant. Defendant spoke, but the victim was not able to understand what defendant said. Defendant threw a pomegranate at the victim, just missing his head. The victim told defendant that he was going to call the police.

On September 19, 2006, the victim was driving and observed defendant, who was walking, throw a piece of broken concrete through the victims vinyl fence, causing a hole. The victim, who was in a truck with his window rolled down, approached defendant. The victim asked defendant about the incident and told defendant to leave his property. Defendant flew into a rage. Defendant told the victim, Dont mess with me, Ill kill you, mother-fucker. Defendant moved to punch the victim through the open window, but the victim leaned to the right, and defendant hit the victim on his left shoulder. Defendant threatened to kill the victim.

The victim began backing his truck away from defendant and told defendant that he was going to call the police. The victim then exited his truck and walked towards his house with a telephone in his hand. Defendant ran towards the victim, and before the victim reached his front door, defendant confronted the victim. Defendant said, that [the victim did not] live in that house, that Geronimo and Dana live in that house. Defendant again threatened to kill the victim. The victims testimony is conflicting as to whether or not defendant told the victim, If you call the fucking cops, Ill kill you[.] Defendant then grabbed the victim by his shirt and used his head to hit the victims head. The victim reached for a nearby shovel. By the time the victim grasped the shovel, defendant had gathered bricks and began throwing them at the victim. Defendant threw two bricks at the victim, and the victim successfully dodged both attacks. The victim then chased after defendant with the shovel, and defendant ran towards another property. When defendant reached the other property, he found cinderblocks and proceeded to throw one at the victim, but it did not strike the victim. Defendant then ran towards an alley. The victim called the police after defendant ran away. After police apprehended defendant, the victim identified defendant as the person that attacked him.

Defendant testified that he was employed as an acquisitions technician and worked on land acquisitions, researching land, [and] finding property. Defendant testified he often walked around the neighborhood looking for lots and land acquisitions. Defendant said that one day he was walking and eating pomegranates when some guys [in a truck] shouted some obscenities [and] racial slurs. The men in the truck began following defendant and pointing a gun at him. One of the men had a swastika on his head. As the men drew closer, defendant passed the victims property, and he threw the pomegranates in the air and took off. Defendant ran to his fathers house. When defendant arrived at the house, he asked the men in the truck, Is there a problem with anything? One of the men responded that he had mistaken defendant for another person. It appeared to defendant that the victim may have known the two men in the truck, because he heard the truck stop on the street where the victim lived. Defendant stated that he reported the incident to the police.

Defendant testified that the next day he was walking in the neighborhood and saw the victim driving a truck. Defendant stated that the victim jumped out of his truck and said, I told you to stay off my street or I told you to stay away from me. Defendant explained to the victim that he was looking at a property for his job. The victim then grabbed defendant by his wrists or shoulders. Defendant pushed the victim and walked away. The victim threw a rock at defendant, missing defendant. The victim then grabbed a shovel and began swinging it at defendant. Defendant grabbed a cinderblock in order to shield himself from a possible blow from the victims shovel. Defendant testified that he discarded the cinderblock towards his left side when he fled from the victim. Defendant stated that he did not call the police to report the victim attacking him because the police are racist and did not help him when he called about the prior incident.

Defendant denied throwing a piece of concrete through the victims fence; throwing any bricks or any other object at the victim; threatening to harm the victim if he called the police; using his head to hit the victims head; and telling the victim that people named Dana and Geronimo lived in the victims house.

The victim testified that the rocks defendant accused him of throwing had recently been added to his landscaping and were not in his yard on the day of the incident. The victim also stated that the incident with the pomegranates did not take place the day immediately prior to the offenses involving the bricks, punching, and cinderblock. The victim did not see or hear a pickup truck at the time defendant threw the pomegranates.

2.

FACTS OF THE PRIOR OFFENSECHARACTER EVIDENCE

The trial court admitted evidence of a prior offense by defendant, pursuant to Evidence Code section 1101, subdivision (b); the following facts concern that prior incident.

Suzanne met defendant when she was employed at Circle K and defendant was a customer at the store. Defendant told Suzanne that his grandfather owned a house in Lake Elsinore and that she could live in it, if she did repair work on the house. Suzanne repaired parts of the house, but subsequently learned the home was owned by a woman named Sylvia.

On January 14, 2006, Suzanne and defendant were both present at the Circle K. Suzanne asked defendant about $20 that he owed to a mutual friend. Defendant told Suzanne [t]hat it was none of [her] business and that he was going to evict her from the house in Lake Elsinore. Suzanne retorted that defendant could not force her to leave the house because he did not own the property. Defendant became very irate, told [Suzanne] that he did [own the house] . . . [and] called [her] several names. Suzannes boyfriend was in the store as well, and he approached defendant. The boyfriend told defendant he didnt need to be calling [Suzanne] those names. Defendant continued swearing at both Suzanne and her boyfriend. A physical altercation occurred between the boyfriend and defendant. The altercation began inside the store, but moved outside. Defendant reached in his car, pulled out a knife, said that he was a crazy mother-fucker, and threatened to kill Suzanne by gutting her. The exact words used by defendant when threatening Suzanne were disputed, but Suzanne testified that defendant said he would [g]ut [her] from asshole to appetite. Defendant also told Suzanne that [i]f he had a gun, he would kill [her]. Defendant left the store. Police arrived soon after.

Defendant testified that he did not threaten Suzanne or brandish a knife in front of her. Defendant denied telling Suzanne that she could live in his grandfathers home, rather, defendant claimed that he told Suzanne there were homes available for rent in his grandfathers neighborhood. Defendant admitted that he pled guilty to making criminal threats ( 422) due to the incident with Suzanne, but stated the conviction was dismissed because he took anger management classes. The prosecutor then asked the court to take judicial notice of defendants conviction in the case, which the court did.

3.

FACTS OF DEFENDANTS PRIOR CONVICTIONSIMPEACHMENT EVIDENCE

When defendant was being cross-examined, the prosecutor asked if defendant had committed crimes prior to the one at issue in the instant case. Defendant responded, No, I havent committed crimes. This one and the other one, thats it. The prosecutor then requested the court take judicial notice of defendants August 10, 1995, conviction for intentionally violating a protective order ( 273.6, subd. (a)), which the court agreed to do. The prosecutor then asked defendant if that was the only prior conviction defendant had suffered. Defendant responded, No. Defendant admitted suffering two convictions in 2001 for giving false information to a peace officer (Veh. Code, 31).

Also on cross-examination, the prosecutor asked defendant if he was correct that defendant had testified that he did not brandish a knife during the incident with Suzanne ( 417). Defendant said the prosecutor was correct. The prosecutor then asked if defendant pled guilty to brandishing a knife in that prior incident. Defendant admitted that he pled guilty to brandishing a knife.

4.

TRIAL COURTS RULING CONCERNING DEFENDANTS PRIOR OFFENSE

During pretrial motions, defendants trial counsel objected to the admission of the evidence related to the prior incident with Suzanne, pursuant to Evidence Code section 1101, subdivision (b), because the evidence was being offered to prove defendants disposition to commit the current offense. Defendants trial counsel argued that the current and prior crimes involved different charges and were not factually similar. The People argued the evidence should be admitted to prove defendants intent to assault the victim and to prove absence of mistake, in that defendant did not believe something else was going on. The People further argued evidence of the prior offense showed that defendant has a pattern of terrorizing people in the neighborhood.

The court made the following ruling: I agree with [defense counsel] that there are factual dissimilarities, but I think the overall picture, I agree with [the prosecutor], . . . there are similarities in terms of [defendant] being the aggressor in both cases, and I do think it paints an incomplete picture if we dont allow in the prior incident. [] And they are close in time, both. We dont have a remoteness problem. In both cases we have a weapon. One is a knife, the other is a brick. And he is the aggressor. [] So I am going to allow it in for absence of mistake and intent. I understand [Evidence Code section] 352, I do need to consider that. I dont think that its more prejudicial than if this involved a shouting match and the prior incident, lets say, involved a shooting, that would be much more prejudicial. But in this case we talk about the throwing of a brick. In the other case its the showing of the knife. I think theyre relatively equal. So I dont think the prior incident is more prejudicial than the case at bar. [] So, under [Evidence Code section] 352, I dont think its more prejudicial, and I think it is more probative. In fact, I think it paints a more complete picture. So Im going to allow it in. [] So that takes care of the [Evidence Code section] 1101 [, subdivision] (b) evidence.

After both parties rested, but prior to closing arguments, when discussing jury instructions, the prosecutor asked for clarification regarding the courts ruling on the prior offense evidence. The court stated that it would not allow the prosecution to use the prior offense evidence for the purpose of proving intent because defendant was not charged with a specific intent crime. The court then stated, Im not going to change anything: You cannot use it for intent, because its not relevant. You dont have to prove intent. Thats not any of your elements. I will allow you to use it, though, for mistake or accident, because I do think its very relevant on the when you pull out a knife, on mistake or accident, to show, You know what, the guy isnt throwing the brick, hes not goofing around. Hes not throwing it, for instance, to scare him. He was throwing the brick when he threw that brick, he meant exactly what he did, to hit him. Do you [understand] what Im saying? And, in that sense, I think its very relevant, and very probative. And my initial ruling on that stands.

The prosecutor then argued the prior offense evidence was relevant to prove the victim had knowledge of facts that would lead a reasonable person to believe that they were in danger of being struck. Defendants trial counsel argued that the prior offense evidence was irrelevant because the element of intent for the crime of making criminal threats is different than the general intent involved in assault with a deadly weapon. The following exchange then took place:

The Court: Well, the jury has heard, obviously, what the statement was that he made to the jury. And, by this ruling, they will not hear it in closing argument.

[Prosecutor]: Can you clarify that, Your Honor?

[Defense Counsel]: The statement?

The Court: Well, she testified to what he told her.

[Defense Counsel]: Right.

The Court: And this ruling, basically what Im saying is, the knife can be used.

[Prosecutor]: But not the statement.

The Court: But not the statement.

[Defense Counsel]: But why is it important to have that statement come in for purposes of the 245 when it doesnt matter what his intent was? All that matters is that he threw the brick, intending to hit [the victim]. So why does that statement even matter?

The Court: Well, certainly I allow[ed] it in for impeachment, and thats the next part of it that I have to add. And I have to look at the use notes. I did allow it for impeachment purposes. Im going to have to add something on this instruction to show that that came in for impeachment purposes only, just like the lying to a police officer. That they cannot use it for this.

[Prosecutor]: In that case, I need to renew and strenuously make my argument. I didnt perceive this earlier. I didnt under[stand] the scope of the Courts ruling, proposed ruling.

The Court: What did you think I was saying?

[Prosecutor]: I did not think you were saying I cant use it in closing. I thought you were saying I could use all of the [Evidence Code section] 1101[, subdivision] (b) evidence, but only for absence of mistake; i.e., I could argue it wasnt a mistake, this wasnt an accident, the defendant the defendant meant to do this. We know that it wasnt a mistake, and we know it wasnt an accident, because look at what he did to [Suzanne]. That shows there was absolutely no mistake. He didnt make the same mistake twice. This wasnt a mistake. I thought that was your ruling. And if that was your ruling, I was happy well, whatever your ruling is, Im happy to abide by it.

The Court: I figured.

[Prosecutor]: If that was your ruling, I didnt feel

The Court: Although I do like that go ahead.

[Prosecutor]: If that was your ruling, I didnt feel too constrained by it. If your ruling is that I cant reference the threat made to [Suzanne] at all, then I would make the following argument: [] First of all, thats directly contrary to the [Evidence Code section] 402 ruling. I would have constructed my case differently. Thats detrimental to my position to tell me after evidence that I cant make an argument in closing that I structured the evidence around making; second of all, I would renew my argument that it is directly relevant because

The Court: [O]bviously, about the statements. Those can be used. Again, it would be [defense counsel], what I meant to say was that evidence can be used; it can include lack of mistake or accident.

[Defense Counsel]: Okay.

The Court: It can be used. Again, and my initial ruling stands about the intent, because this is not a specific intent crime. But it can be used, again, lack of mistake or accident.

[Defense Counsel]: And if I could address that issue?

The Court: And you will. I . . . just want to make sure that the record is clear for future purposes, and I know that this is what you would want as well, as well as [the prosecutor]. What Im saying is this: In a case like this, where the charges the guy picks up, or [defendant] picks up a brick and throws it, it can be perceived differently. You know, he ducks, it gets thrown by the head. [The prosecutor] has to prove beyond a reasonable doubt that, when he threw it, the defendant did the act with a deadly weapon that by its [sic] nature [it] would directly and probably result in the application of force, was aware of facts to lead a reasonable person to realize the act, by its nature, would directly and probably result in the application of force, and he had the ability to apply the force.

[Prosecutor]: I also need to prove force was likely to cause great bodily injury.

The Court: Right. And so you could argue that he didnt really mean to do it, and that he was throwing it to scare him, and that given the things that he said on the stand. You know, you really could argue that he wasnt even trying to throw it at him. Just its crazy. [] So I think what you could argue under absence or lack of mistake or accident is the other incident shows that he really meant it when threw the brick. When he pulled out that knife, and when he threatened her, when he does something, he means it. [] So when he picked that up, he was trying to hit him. And thats how I thats how I can see I can see how its probative. [] And thats where I see the tie-in for this [Evidence Code section] 1101[, subdivision] (b) [evidence]. I dont see it with intent. Because I did look at the case, it is not a specific intent crime. [Prosecutor], you dont need to prove intent. And so I was looking at this yesterday, and I was looking at this yesterday, and I was like, you know what, you dont need that for intent. You just need to do the act. So you dont need any of that evidence. But I can see it being very relevant given all the facts that we heard for this accident, lack of mistake. Because it can focus the argument about what he was doing. [] Does that make sense?

[Prosecutor]: Absolutely. And I can use both the threat and the knife for that purpose?

The Court: Well, I think you can, because I think what because I think his intent again, you know, I really shouldnt be using the word intent, and I dont want you to use the word intent. But it makes the conduct that he engaged in clear. [] Does that make sense?

[Prosecutor]: Yes, Your Honor.

The Court: That there was no mistaking what he was trying to accomplish.

[Prosecutor]: Absolutely.

The Court: And then I dont think at least if [the victim] is to be believed, and [Suzanne] is to be believed, then I do you see the tie that Im making?

[Prosecutor]: Absolutely.

The Court: And for that limited purpose, I will allow you to use it. Thats how Im framing this. [] Now, dont worry, [defense counsel], Im going to the other the [criminal] threat, brandishing, also the problem that we have is that it also came in to impeach his well, the [criminal] threat came in to impeach his credibility.

[Prosecutor]: The [criminal] threat came in to impeach his propensity for truthfulness. Its general impeachment.

The Court: Right.

[Prosecutor]: The [brandishing] came in [for] specific impeachment of his statement that he never brandished that knife.

The Court: Right. And were going to have to put that in this instruction somehow. But Im going to have to draft that. Also the statement to the officer. So dont we have I think three, correct? The criminal threats, the brandishing, and . . . [l]ying to a police officer. [] Wouldnt you agree, [defense counsel?] Dont you think this needs to be put in this instruction somehow? So that they cant because we dont want those to be used

[Prosecutor]: As evidence of the truth of the charge?

The Court: Well, [Evidence Code section] 1101[, subdivision] (b).

[Prosecutor]: Right, and along with a violation of a [protective] order. That also shouldnt be used as [Evidence Code section] 1101[, subdivision] (b) [evidence]. Its just well

The Court: Whats the code section on that? 273.6? And do you both agree that should be put in this instruction somehow at the bottom?

[Defense Counsel]: That [Evidence Code section] 1101[, subdivision] (b) does not apply to those?

The Court: Yes.

[Defense Counsel]: Right.

[Prosecutor]: I dont think I agree.

The Court: Because I think it says that in the use note, when I looked.

[Prosecutor]: I understand that. I think that I think everyone both sides have a vested interest in the jury being very clear on what they can consider, for what purposes, and what they cant consider, and for what purposes. And I obviously would have no objection to the jury being instructed that crimes of moral turpitude go to credibility, and [Evidence Code section] 1101[, subdivision] (b) evidence goes to the charges. Thats absolutely fine. But then since I havent seen it before, I dont know how were going to draft it, but I just dont want to agree to it before Ive seen it.

The Court: Okay.

[Defense Counsel]: I think its a great idea, and I think its very important, because I dont want the jury to be confused, and if you set it out in the [Evidence Code section] 1101[, subdivision] (b) [instruction], it doesnt apply to these, because they only go to credibility and impeachment, then I think that

The Court: Well, Ill try to craft something. [] Okay. [Defense counsel], do you want to make a record on this?

[Defense Counsel]: Yes. Just regarding the intent and the absence of mistake, I understand the ruling.

The Court: You agree with me?

[Defense Counsel]: I understand the Courts ruling on the intent.

The Court: Do you agree with that?

[Defense Counsel]: Yes. But with the mistake and I understand the impeachment, you know, he testified, I get that. But with two completely different crimes, a criminal threat, a brandishing a knife, where he never actually swung the knife at her, never approached her with it, its completely different for in this case, where hes actually said to be throwing a brick. So I dont see how you could use that as absence of mistake or accident. So I just wanted to make a record. I understand the Courts ruling.

The Court: No, I know. And I think you made that argument in the 402.

[Defense Counsel]: Yes.

The Court: If I get overturned on that, you already made that record clear. And, again, I think I stated that I dont think the one is more serious. And I think when you pull a knife out on another human being thats very serious, and he did make a threat. I mean, he is a man who means what he says, and it is a crime of violence, and I think and I think its probative. And I think and I think its relevant, and I think the prosecutor should be able to use it in his in his case. So I think we already addressed that issue. [] Okay. So, anyway, lets not use the word intent. I will allow it for lack of mistake. And Ill note your objection.

Later, the court ruled that it would instruct the jury on specific intent because the crime of dissuading a witness is not a general intent crime; however, the issue of using the prior offense evidence to prove intent was not raised again.

DISCUSSION

1.

PRIOR OFFENSE EVIDENCE

Defendant contends the trial court erred by admitting evidence of his prior offense against Suzanne. We disagree.

At the outset, we recognize that the trial court struggled with setting forth its reasons for admitting the evidence of defendants prior offense.^[2] The trial court explained that the prior offense evidence helped to prove a lack of mistake because it showed that [defendant] really meant it when he threw the brick. Although couched in terms of lack of mistake or accident, the trial court was essentially explaining that the prior offense evidence was relevant to proving defendants intent in the instant case, because it negated the proof that defendant was acting with an innocent state of mind at the time of the offenses. Accordingly, we construe defendants contention as alleging that the trial court erred by admitting evidence of defendants prior offense as proof of defendants intent in the instant case.

Evidence of a prior offense may be admitted, as it was in this case, to negate the requisite intent for self-defense. (See People v. Robbins (1988) 45 Cal.3d 867, 880, [prior offenses may tend to negative accident or inadvertence or self-defense or good faith or other innocent mental state], superseded by statute on another ground as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.] [Citations .] (People v. Brown (1993) 17 Cal.App.4th 1389, 1395.) Because this type of evidence can be so damaging, [i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded. [Citation.] (People v. Daniels (1991) 52 Cal.3d 815, 856.)

We review for abuse of discretion a trial courts rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) A court abuses its discretion when its ruling falls outside the bounds of reason. [Citation.] (People v. Catlin (2001) 26 Cal.4th 81, 122.)

In order to be acquitted on a theory of self-defense, a defendant must provide proof that he reasonably believed that he was in imminent danger of suffering bodily injury and reasonably believed that the immediate use of force was necessary to defend against that danger. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3470.)

Defendant argued a theory of self-defense, and the court instructed the jury accordingly. By arguing that he was acting in self-defense, defendant made his state of mind a disputed issue. Whether defendant reasonably believed that he needed to defend himself was a material fact that the prosecution was required to disprove in order for the jury to find defendant guilty of assaulting the victim. Accordingly, the materiality requirement was satisfied, because defendants state of mind when he held the brick was a disputed fact.

We next determine whether the prior offense evidence tended to disprove the material fact. In order for prior offense evidence to have the tendency to disprove a material fact, the prior offense must be sufficiently similar [to the charged offense] to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Defendant claimed that the prior offense resulted from mutual combat; however, he was engaged in mutual combat with Suzannes boyfriend, whereas the threats that were admitted as prior offense evidence were made against Suzanne. The prior threat to gut Suzanne, who had only asked defendant a questionsimilar to the victim in the instant case, who asked defendant why he threw a piece of concretetended to support an inference that when defendant held the brick in the instant case, he did not do so because he reasonably believed that he was in imminent danger and that force was necessary because [t]he recurrence of a similar result . . . tends (increasingly with each instance) to negative . . . self-defense . . . or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal intent accompanying such an act. (Ibid.)

The remaining question is whether the trial court abused its discretion in failing to exclude the evidence pursuant to Evidence Code section 352, by finding the prior offense evidence was substantially more probative than prejudicial. As the trial court noted, the prior offense evidence did not involve crimes of greater gravity or violence than those alleged in the instant case. In the prior offense, defendant threatened Suzanne and brandished a knife. In the current case, defendant assaulted, battered, and intimidated the victim. The prior incident involving Suzanne tends to logically show that defendant was not acting with a reasonable belief that he needed to defend himself when using the brick against the victim, as concluded ante. Additionally, as concluded ante, the prior offense went to the heart of a disputed material fact. Accordingly, the trial court properly determined that the prior offense evidence was substantially more probative than prejudicial.

In sum, we find no error in the trial courts decision to admit evidence of defendants prior offense.

2.

SUBSTANTIAL EVIDENCE

A. Facts Related to Defendants Conviction for Intimidating a Witness

After the victim testified about defendant hitting him in the head, the following exchange took place:

[Prosecutor]: Did [defendant] say anything else at this point?

[The victim]: No.

[Prosecutor: Did he say anything regarding your calling the police?

[The victim]: Thats when he approached me is when I told him I was calling the police.

[Prosecutor]: Did he say anything in response to that?

[The victim]: I told him no; thats when he was telling me that I didnt live there.

[Prosecutor]: Did he later say anything regarding your calling the police?

[The victim]: No.

[Prosecutor]: Are you positive?

[The victim]: Yes.

[Prosecutor]: Is it possible that he said something that youve forgotten?

[The victim]: The only thing I remember him telling me is that I didnt live in the house, that Geronimo and Dana lived in the house, and he was still mad and that he would kill me.

[Prosecutor]: What Im asking is, is it possible that he said something else and that youve forgotten it since then?

[The victim]: Could have been, yeah.

The prosecutor then tried to refresh the victims recollection by showing him a police report memorializing the victims statement. The victim testified that the police report did not refresh his recollection.

Later, on redirect examination, the following exchange occurred:

[Prosecutor]: Did you tell the police that [defendant] said and I quote If you call the fucking cops, Ill kill you?

[The victim]: Yes.

[Prosecutor]: Did [defendant] say that?

[The victim]: Yes.

B. Defendants Contention

Defendant contends the evidence supporting his conviction for intimidating a witness does not meet the substantial evidence standard. We disagree.

In reviewing a sufficiency of evidence claim, the reviewing courts role is a limited one. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidencethat is, evidence which is reasonable, credible, and of solid value from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (Ibid.)

The jury found defendant guilty of felony dissuasion which requires proof that (1) defendant attempted to prevent or dissuade the victim from reporting being a victim of a crime to local law enforcement officers; and (2) defendant used force or an express or implied threat of force or violence when attempting to dissuade the victim. ( 136.1, subd. (c)(1).)

The victim testified that after defendant punched him through the open truck window, he told defendant that he was going to call the police. Defendant responded by saying, If you call the fucking cops, Ill kill you[.] Defendant then hit the victim in the head with his own head while the victim held his telephone in his hand. Riverside County Sheriffs Deputy Larsen testified that the victim told him defendant threatened to kill him if he called the police. We conclude the victims and deputys testimony provides substantial evidence that defendant used force and an express threat of force in attempting to dissuade the victim from reporting the crime to police. Accordingly, we conclude that substantial evidence supports defendants conviction for intimidating a witness.

Defendant argues that the victim initially testified that defendant did not respond when the victim said he planned to call the police, and that the victim only contradicted his prior testimony as the result of a leading question. Defendant aptly points out conflicts in the victims testimony; however, we cannot resolve evidentiary conflicts.

Defendant also argues the conflict in the victims testimony causes the victims version of the events, in which defendant threatened to kill him, to be inherently improbable. To come within the rule of inherent improbability, testimony must be such that it is physically impossible for it to be true, or its falsity must be apparent without resort to inference or deduction. (People v. Norman (1959) 175 Cal.App.2d 348, 352.) The alleged conflicts in the victims testimony were for the jury to consider in determining the victims credibility and the weight to be given to his testimony, but they are not sufficient to render the victims testimony inherently improbable, because the statements do not appear false on their face nor does there exist a physical impossibility that they are true. (People v. Jones (1968) 268 Cal.App.2d 161, 165; see also People v. Lewis (2001) 26 Cal.4th 334, 361.)

3.

SENTENCING

A. Facts Relating to Defendants Sentencing

Prior to pronouncing defendants sentence, the court gave a detailed analysis of the aggravating circumstances in the case and its reasons for choosing the midterm. When pronouncing defendants sentence, the court made the following statement: The defendant is sentenced to state prison under Penal Code Section 1170 and Senate Bill 40, which is the new legislation.^[3]

B. Defendants Contention

Defendant contends the court erred by not acting with informed discretion when sentencing defendant. Defendant argues the court expressed an incorrect belief that amendments to section 1170 were applicable to his sentence and that the court failed to weigh any mitigating and aggravating factors.

The jury delivered its verdict in defendants case on March 2, 2007. Defendants sentencing hearing took place on April 6, 2007. The amendments to section 1170 became effective on March 30, 2007. (Sen. Bill No. 40 (2007-2008 Reg. Sess.) 7.) In People v. Sandoval, our Supreme Court declined to decide whether the amendments to section 1170 were merely procedural changes, rather than substantive changes, and therefore could be applied to all proceedings that took place after its enactment without creating issues related to retroactivity of penal laws. (People v. Sandoval (2007) 41 Cal.4th 825, 845.) We too decline to decide whether the trial court was correct in citing the amended section 1170 at defendants sentencing hearing, because [i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion . . . [because, (1)] the appellate court reviews the action of the lower court and not the reasons for its action; . . . [and (2)] there can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct. (People v. Gibson, supra, 195 Cal.App.3d at p. 853, italics omitted.)

The court sentenced defendant to the midterm, and defendant does not argue that the sentence was incorrect, but that the court failed to weigh the aggravating and mitigating circumstances. Our review of the record reveals that the trial court weighed factors in mitigation and factors in aggravation, before deciding the midterm was the proper sentence. The court stated that it disagreed with all of the mitigating factors cited by the probation department and gave thorough explanations for its opinions. The court went on to cite various factors in aggravation. Accordingly, we conclude the trial court did not err in sentencing defendant.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ Miller

J.

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^[1]All further statutory references will be to the Penal Code unless otherwise indicated.

^[2]As a general principle, if the decision of a lower court is correct on any theory of law applicable to the case, its judgment will be affirmed regardless of the correctness of the grounds upon which it reached its conclusion. (People v. Gibson (1987) 195 Cal.App.3d 841, 853.) Accordingly, we do not analyze the trial courts reasoning for the purpose of determining the propriety of its ruling, but for the purpose of succinctly setting forth its rationale in order to aid our discussion of defendants contention.

^[3]Senate Bill No. 40 amended Californias determinate sentencing scheme ( 1170) in response to the United States Supreme Courts opinion in the case of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. (Sen. Bill No. 40 (2007-2008 Reg. Sess.) 7.)