P. v. Lopez
Filed 8/1/13 P. v. Lopez CA2/6
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff
and Appellant,
v.
SERGIO JOSE LOPEZ,
Defendant and
Respondent.
2d Crim. No.
B241532
(Super. Ct.
No. KA095567)
(Los
Angeles County)
ON REHEARING
The
grant of a defendant's motion to dismiss on double
jeopardy principles terminates the People's case. Where, as here, the trial court grants a new
trial based on its independent assessment of the evidence pursuant to
Penal Code section 1181, subdivision (6),
there is simply no authority upon which such motion can be made or
granted. Any trial court contemplating
terminating the People's case on double jeopardy principles should welcome the
opportunity to pause and reflect before making a ruling. Here, the trial court did so without the
benefit of a written motion or written opposition.
The
People appeal from the trial court's order granting a new trial on the charge
of attempting to dissuade a witness as alleged in count 7. (§ 136.1, subd. (a)(2).)
subsequent order dismissing this charge and the accompanying "on
bail" enhancement.
(§ 12022.1.)
name="_ftnref3" title="">[3] The dismissal was predicated on the theory
that retrial is barred by double jeopardy principles.
A
jury acquitted respondent on counts 1, 2, 3, and 6. It returned guilty verdicts on counts 7 and
8. It was unable to reach a verdict on
count 4, which was dismissed. For the
misdemeanor offense of willful disobedience of a court order (count 8),
respondent was sentenced to 241 days in county jail. He was given credit for 241 days of
presentence confinement.
For
the charge of attempting to dissuade a
witness (count 7), the trial court granted a new trial on the ground that
the verdict was contrary to the evidence.
(§ 1181(6).) We affirm this
order but reverse the trial court's subsequent order dismissing count 7 because
it was based on an erroneous application of double jeopardy principles.
Respondent,
a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's
house. On September 16, 2011, Deputy
Aaron Scheller interviewed Sirena Zavala.
Zavala stated as follows: During an argument with respondent the
previous day, she asked him to move out.
Respondent grabbed Zavala by the throat and started choking her. Zavala said that she would stay with
respondent, and he "let go."
Zavala walked into the bedroom and sat on the bed. She was crying. Respondent asked her "if they were
okay." Zavala responded that
"they were not okay."
Respondent "pulled her head out of her elbows where she was crying
and brandished a silver handgun revolver in his right hand." Respondent said, "I told you if you were
ever going to leave me, I will shoot you and shoot myself." Respondent inserted a single bullet into the
revolver's cylinder. He cocked the
revolver and put the muzzle against his temple.
Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the revolver at
her and then at himself. When respondent
pointed the gun at Zavala, it was only inches from her head. Respondent fired the revolver. The bullet struck the bed's headboard and
mattress. Zavala said that she was not
going to leave respondent, and he put the weapon down. Zavala walked out of the bedroom and told
respondent that she was going to take a break.
Respondent replied, "[Y]ou're not going anywhere." Zavala felt "an object hit her in the
buttocks." Respondent had thrown a
candle at her. Respondent grabbed her by
the shoulders, pulled her back into the bedroom, and threw her onto the
bed. For several minutes, he hit her
with his fists in the face, body, arms, and legs. Respondent stopped hitting her when she said
that her children were going to be home soon from school.
Respondent's
Porsche was parked at Zavala's house.
Deputy Scheller searched the vehicle and found a revolver that was
registered to respondent. The revolver's
cylinder contained one expended cartridge and no live rounds.
Under Zavala's bed, Deputy Scheller found a
bullet fragment. There was a bullet hole
in a bed sheet. Zavala gave Scheller a
bullet fragment that she had found underneath the hole in the sheet. Scheller saw "an impact mark on the wood
of the headboard."
A felony complaint
was filed against respondent. On
September 20, 2011, he was arraigned on the complaint. The court issued a restraining order
requiring him to not have any contact with Zavala. A preliminary hearing was set for October 26,
2011.
Deputy
Greg Salcido was assigned to investigate the case. On September 21, 2011, he met Zavala at her
house, but she refused to talk to him.
Thereafter, Deputy Salcido went to Zavala's house four or five times to
serve her with a subpoena for the preliminary hearing, but he was unable to
locate her. Zavala saw Salcido come to
her house, but she would not open the door.
Zavala did not want to be served with a subpoena.
Between
September 25 and 29, 2011, while Salcido was trying to find Zavala, respondent
and Zavala stayed in the same room at a hotel.
Respondent signed the hotel receipt and paid for the room with his law
office's credit card. Zavala testified
that it was her idea to stay at the hotel.
She explained that respondent had told her that "he couldn't see
[her] because of the restraining order."
Zavala had responded, " 'We'll stay at a hotel and nobody will
know.' " However, Zavala later
testified that she "had [respondent] help [her] not be found [by law
enforcement] by staying at a hotel with him."
At
trial, Zavala testified that she and respondent had a verbal argument that did
not become violent. Respondent did not
touch any part of her body. After the
argument ended, she was in the kitchen when she heard a gunshot inside her
bedroom. She went into the bedroom and
saw respondent "kind of like in shock holding the gun." Respondent said, "I'm sorry, you're
going to be pissed off. I just totally
ruined your bed." Zavala denied
telling Deputy Scheller that respondent had hurt her or had fired a gun in her
presence.
Jeopardy Principles
On the charge of
attempting to dissuade a witness, respondent orally moved for a new trial on
the ground that the verdict was contrary to the evidence. (§ 1181(6).) Defense counsel asked the court to
"exercise its independent judgment of the evidence" pursuant to
was released from custody, he did have contact with [Zavala] and he did provide
a hotel room. The clear inference in my
view being that he wanted to see her, not that he wanted to prevent her from
testifying or help her from not testifying. . . . And there's no evidence or
insufficient evidence, I should say, from which the court can infer that he did
that for the purposes required to violate [section] 136[.1, subd.
(a)(2)]."
In
granting the motion for new trial, the
trial court stated: "I've evaluated it [the charge of attempting to
dissuade a witness] in the context of Robarge
and the cases following [Robarge]
and exercising my independent judgment of the evidence . . . find there's
insufficient evidence to support the verdict." Defense counsel said, "I'm asking the
court to dismiss that count [count 7] because he's been in jeopardy on
this." The court replied:
"You're correct. Granted. He can't be retried based on the court's
ruling and finding based on insufficiency of the evidence . . . ." The court minutes state: "An oral motion
of [respondent] to dismiss the charge in count 7 is granted (once in
jeopardy)."
The
People contend: "Because the trial
court blended two different, conflicting standards of review together in ruling
on the motion for a new trial . . . , the trial court erred as a matter of law
when it ruled on the motion for a new trial." The two different standards are the
to determine whether the evidence is legally sufficient to support a
conviction.
Pursuant
to Robarge, "the
court, on [an 1181(6)] motion for a new trial, should consider the probative
force of the evidence and satisfy itself that the evidence as a whole is
sufficient to sustain the verdict.
[Citations.] . . . [I]t should consider the proper weight to be accorded
to the evidence and then decide whether or not, in its opinion, there is
sufficient credible evidence to support the verdict. [Citations.]" (Robarge,
supra, 41 Cal.2d at p. 633.) The trial court "has very broad
discretion and is not bound by [the jury's resolution of] conflicts in the
evidence." (Ibid., see also
125, 133 ["in ruling on an 1181(6) motion for new trial," the court
"independently examines all the evidence to determine whether it is
sufficient to prove each required element beyond a reasonable doubt to the
judge, who sits, in effect, as a '13th juror' "].) On the other hand, "[f]or challenges
relating to the [legal] sufficiency of the evidence, 'the reviewing court must
examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]'
[Citation.]" (
365.) The reviewing court "must not
reweigh the evidence [citation], reappraise the
factual conflicts . . . [citation]."
(People v. Pitts (1990) 223
Cal.App.3d 606, 884.)
The People argue that the trial court
"blended" the two standards together because the court said it was
relying on Robarge,
insufficient evidence to support the verdict." The People maintain that the words
"insufficient evidence" show that the court found the evidence to be
legally insufficient under the substantial evidence test. The People assert: "[T]he trial court's ruling that
there was 'insufficient evidence' inherently conflicts with its statement that
it examined the evidence under Robarge .
. . since the two standards of review are entirely different." "[T]he trial court erred as a matter of
law when it used an incorrect standard of review to grant the motion for a new
trial."
" 'A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown.' " (
557, 564.) Furthermore, "[i]t
is a basic presumption indulged in by reviewing courts that the trial court is
presumed to have known and applied the correct statutory and case law in the
exercise of its official duties.
[Citations.] [¶]
contrary, that presumption justifies a finding in this case that the trial
court" properly applied the Robarge standard. (People
v. Mack (1986) 178 Cal.App.3d 1026, 1032.)
The use of the words "insufficient evidence" does not
establish that the trial court applied the wrong standard.
" 'A trial court's ruling on a
motion for new trial is so completely within that court's discretion that a
reviewing court will not disturb the ruling absent a manifest and unmistakable
abuse of that discretion. [Citation.]' [Citation.]" (People
v. Lewis, supra, 26 Cal.4th at p.
364; People v. Andrade (2000) 79
Cal.App.4th 651.) The People do not
contend that, under the Robarge standard,
the trial court abused its discretion.
Accordingly, we uphold the trial court's order granting a new trial on
the charge of attempting to dissuade a witness.
Erroneous Jeopardy Ruling
The trial court dismissed the charge
of attempting to dissuade a witness because respondent "can't be retried
based on the court's ruling and finding based on insufficiency of the
evidence." This was erroneous. "In filing a motion for new trial,
[respondent] impliedly waived any double jeopardy protections he might have had
under state law, just as if he had consented to a mistrial. [Citations.]" (Porter
v. Superior Court, supra, 47
Cal.4th at p. 136.) Our Supreme Court
has "repeatedly held that an order granting a new trial under section
1181(6) is not an acquittal and does not bar retrial on double jeopardy
grounds. [Citations.]" (
as a 13th juror who is a 'holdout' for acquittal. Thus, the grant of a section 1181(6) motion
is the equivalent of a mistrial caused by a hung jury. [Citation.]" (
must acquit if it finds the evidence insufficient, a trial court ruling
on an 1181 motion may only grant the defendant a new trial if it is not
convinced of guilt beyond a reasonable doubt.
[Citation.] This rule permits
trial court oversight of the verdict but ensures that the People, like the
defendant, have the charges resolved by a jury." (
settled that a court reviewing the jury's verdict under section 1181 lacks the
power to acquit the defendant based on the court's view of the evidence. [Citation.]" (
Respondent argues that the
People forfeited their claim of error because they failed to object in the
trial court. "[A] reviewing court
ordinarily will not consider a challenge to a ruling if an objection could have
been but was not made in the trial court. [Citation.]
The purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected. [Citation.]" (In re
S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)
The forfeiture rule is
inapplicable here because the jeopardy issue presents a pure question of law
and the People contend that the dismissal denied them their constitutional
right to a jury trial. "The People
have a fundamental right to jury trial, secured by article I, section 16 of the
California Constitution which provides that trial by jury is an inviolate right
and shall be secured to all, and may be waived in a criminal case only '
"by the consent of both parties . . . ." '
[Citations.]" (
178, 182-183.) In In re Sheena K. (2007) 40 Cal.4th 875, 889, our Supreme Court held
that a defendant's claim that her probation condition was unconstitutionally
vague and overbroad on its face was not forfeited by her failure to raise it in
the juvenile court. The court noted that
the claim "presented a pure question of law, easily remediable on appeal
by modification of the condition."
(Id., at p. 888; see also Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476-1477,
and cases listed therein, disapproved on other grounds in Katzberg v. Regents of University of California (2002) 29 Cal.4th
300, 320.)
Even if the People had
forfeited their claim of error, we would exercise our discretion to review
it. The Sheena K. court declared: "[F]orfeiture of a claim not raised
in the trial court by a party has not precluded review of the claim by an
appellate court in the exercise of that court's discretion. [Citations.]
Thus, an appellate court may review a forfeited claim—and '[w]hether or
not it should do so is entrusted to its discretion.' [Citations.]
[¶] The appellate courts
typically have engaged in discretionary review only when a forfeited claim involves
an important issue of constitutional law or a substantial right. [Citations.]" (In re
Sheena K., supra, 40 Cal.4th at
p. 887, fn. 7.) The People's claim
involves important issues of constitutional
law: their right to a jury trial and the applicability of double jeopardy
principles. The claim "requires the
review of abstract and generalized legal concepts - a task that is well suited
to the role of an appellate court."
(Id., at p. 885.)
In his petition for
rehearing, respondent contends that he is entitled to present supplemental
briefing on the Sheena K. issue because
he did not have the opportunity to discuss it in his brief. The issue was raised for the first time in
the People's reply brief. The People
were replying to respondent's argument that they had forfeited their claim of
error by failing to object when the court dismissed the case.
In support of his
contention, respondent cites Government Code section 68081, which provides:
"Before the Supreme Court, a court of appeal, or the appellate division of
a superior court renders a decision in a proceeding other than a summary denial
of a petition for an extraordinary writ, based upon an issue which was not
proposed or briefed by any party to
the proceeding, the court shall afford the parties an opportunity to present
their views on the matter through supplemental briefing. If the court fails to afford that
opportunity, a rehearing shall be ordered upon timely petition of any
party." (Italics added.) This section is inapplicable because the
People briefed the Sheena K. issue in
their reply brief. Moreover, pursuant to
section 68081 " '[t]he parties need only have been given an opportunity to
brief the issue decided by the court and the fact that a party does not address
an issue, mode of analysis, or authority that is raised or fairly included
within the issues raised does not implicate the protections of section
68081.' [Citation.]" (Mark
v. Spencer (2008) 166 Cal.App.4th 219, 228, fn. 4.) The Sheena
K. issue was fairly included within the forfeiture issue raised by
respondent in his brief.
Could Support a Conviction
Dissuade a Witness
Respondent
maintains that any error by the trial court was harmless because the evidence
is legally insufficient to support the conviction of attempting to dissuade a
witness. As previously discussed, the
test is "whether from the evidence, including reasonable inferences to be
drawn therefrom, there is any substantial evidence of the existence of each
element of the offense charged [citations].'
[Citations.]" (
505.) As we explain, the inferences that
can easily be drawn against respondent are compelling. As Presiding Justice Roth so eloquently
indicated: "There is, of course, no
talismanic requirement that a defendant must say 'Don't testify' or words
tantamount thereto . . . ." (
511, 514.)
Respondent acknowledges that Zavala
"stayed with [him] at a hotel for four nights in September." But he contends that the People failed
"to prove [he] knew the prosecution was attempting to subpoena Zavala and
that he specifically intended to help her evade service." (Italics omitted.) Respondent asserts, "It is simply not
reasonable to believe that respondent's staying with his girlfriend for four
nights in a local hotel a full month before the preliminary hearing establishes
a specific intent to dissuade her from testifying at the hearing."
A
reasonable trier of fact could find that respondent arranged for Zavala to stay
at the hotel so that law enforcement authorities would be unable to locate her
and serve her with a subpoena for the preliminary hearing. Zavala knew that the police were
trying to find her. Deputy Salcido went
to her house four or five times to serve her with a subpoena. Zavala saw Salcido come to the house, but she
did not open the door. It is reasonable
to infer that Zavala informed respondent of these attempts to contact her. As an attorney, he
should have realized that the police were trying to serve her with a subpoena
for the preliminary hearing. Except for
count 8 (disobedience of the restraining order), Zavala was the only witness to
the events underlying the charges. Zavala
testified that she "had [respondent] help [her] not be found by staying at
a hotel with him." The
hotel receipt was in respondent's name, and he paid for the room with
his law office's credit card.
An incident that
occurred on October 4, 2011, five days after respondent and Zavala had left the
hotel, provides additional support for the jury's finding that respondent was
complicit in Zavala's efforts to evade service of a subpoena. On that date Deputy Salcido arrested
respondent while he was driving Zavala's daughter home from school. The daughter telephoned Zavala and left a
message on her answering machine. Zavala
sent a text message to Jessie Wong, who worked as a paralegal for
respondent. The text message stated:
"They arrested [respondent] again.
Please call me back. They also
took custody of my daughter and won't return her unless I go to the station." Wong texted back to Zavala, "Don't leave
your house." Zavala texted to Wong:
"Okay. I'm afraid they [the police]
are tracking me." Zavala never
picked up her daughter from the station.
The daughter's father picked her up six hours later. Zavala admitted that she was "trying to
avoid being served with a subpoena."
It is reasonable
to infer that Wong told Zavala not to leave her house because Wong was
concerned that Zavala would be served with a subpoena if she went to the
station to pick up her daughter. Since
Wong was respondent's employee, it is also reasonable to infer that Wong was
acting pursuant to respondent's instructions that Zavala avoid contact with law
enforcement.
We
reject respondent's contention that, "even if the evidence were sufficient
to show that [he intentionally] assisted Zavala in her ongoing attempt to evade
service[,] he was not guilty of dissuading a witness." In In
re Holmes (1983) 145 Cal.App.3d 934, 942, the appellate court
concluded: "Advising a witness to
conceal himself for the purpose of avoiding service of a subpoena is in
violation of Penal Code section 136.1 . . . ." The Holmes
court reasoned: "[O]ur Supreme Court in People v. Carpenter
(1902) 136 Cal. 391, 393 . . . , found that a person who advised a witness,
prior to trial, to conceal himself for the purpose of avoiding the service of a
subpoena was guilty of Penal Code section 136, which at that time provided:
'Every person who willfully prevents or dissuades any person who is or may
become a witness, from attending upon any trial, proceeding, or inquiry,
authorized by law, is guilty of a misdemeanor.'
[Citation]. . . . The slight differences in language between the 1902
statute and the more recent one . . . would not seemingly change the
interpretation of the statute by our Supreme Court in Carpenter, supra." (
The
order granting a new trial on count 7 is affirmed. The subsequent order dismissing count 7 is
reversed.
NOT
FOR PUBLICATION
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Tia Fisher, Judge
Superior Court County of Los Angeles
______________________________
Jackie Lacey, District Attorney of
Los Angeles County, Phyllis Asayama, Patrick D. Moran and Scott D. Collins,
Deputy District Attorneys, for Appellant.
David
Andreasen, under appointment by the Court of Appeal, for Defendant and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code. Section 1181, subdivision (6) is hereafter
referred to as section 1181(6).
name="_ftn2" title="">[2] In addition to count 7, the information
alleged that respondent had committed the following offenses: assault with a
firearm (count 1); threatening to commit a crime that will result in death or
great bodily injury (count 2); false imprisonment by violence (count 3);
corporal injury to a cohabitant (count 4); discharge of a firearm in a grossly
negligent manner (count 6); and willful disobedience of a court order, a
misdemeanor (count 8). The information did not include a count 5.
