P. v. Silva

 

 

 

 

 

Filed 9/19/13  P. v. Silva CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,   v.   THOMAS HENRY SILVA,   Defendant and Appellant.

H037780      (Santa Cruz County       Super. Ct. Nos. F19909, WF00879,                                W13885)

            In Santa
Cruz County case
No. F19909, a jury convicted defendant Thomas Henry Silva of misdemeanor
violating a criminal protective order
by threat or violence (Pen. Code, § 166, subd. (c)(4), count 3),href="#_ftn1" name="_ftnref1" title="">[1]
dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2), count 4),
and dissuading a witness from testifying
(id. subd. (a)(2), count 5).  It could not reach a verdict on counts
charging criminal threat, assault with a deadly weapon, and intimate partner
battery (counts 1, 2, and 6).  The trial
court dismissed counts 1, 2, and 6 in the interest of justice, revoked
probation in Santa Cruz County
case Nos. WF00879 and W13885, and sentenced defendant to 12 years and eight
months in prison.  The sentence included
a five-year serious-felony sentence enhancement.  (§ 667, subd. (a)(1) [person convicted of a
serious felony shall receive five-year enhancement for each prior
serious-felony conviction].)  On appeal
in Santa Cruz County
case No. F19909, defendant contends that the trial court erred by (1) coercing
the jury to return verdicts on counts 3 and 4 after an impasse, and (2)
imposing the serious-felony enhancement. 
We disagree and affirm the judgment. 
On appeal in Santa Cruz County
case Nos. WF00879 and W13885, defendant raises no issues.  We therefore also affirm those judgments.

background

            Defendant
had an acrimonious, on-again off-again relationship with Elsa Esparza.  He had pleaded no contest to violating a
protective order in favor of Esparza, and the trial court had issued a
protective order as part of the resolution of that case.  In an attempt at reconciliation, defendant
confronted Esparza at her home. 
Afterward, Esparza called the police and reported that defendant had
held a knife to her cheek.  The police
arrested defendant two days later.  They
recorded defendant’s telephone calls from jail to Esparza.  The recordings provided the evidence against
defendant on counts 4 and 5.

            Defendant
testified and claimed that (1) Esparza had fabricated the knife-assault
scenario, and (2) during the jailhouse telephone calls, he had encouraged
Esparza to be honest rather than drop the charges.

            After
deliberating for two days, the jury informed the trial court that it had
reached a verdict on count 5 but could not reach a verdict on the other counts.  This colloquy followed.

             â€œTHE COURT: 
[Juror No. 8], as the foreperson, let me ask you some questions, please.
[¶] You folks have obviously been deliberating together and discussing and
considering the matter.  You have asked
for some further instructions on the law and some clarification of some factual
issues. [¶] Let me ask you, [Juror No. 8], do you think--if I were to ask you
folks to continue to deliberate, discuss together, do you think there’s any
reasonable probability that the jury might arrive at a verdict on any of the
other counts?  Doesn’t have to be all of
them.

            “JUROR No.
8:  On some of them, yes.  On others, it doesn’t seem as likely.

            “THE
COURT:  Ah.  But on some of them, yes?

            “JUROR No.
11:  No, no.

            “JUROR No.
10:  No.

            “JUROR No.
8:  No? 
Oh, we can’t agree on much.  No.

            “THE
COURT:  Okay.  Well, [Juror No. 8] said yes, in her opinion,
she thought it was a reasonable probability that there may be some
developments. [¶] Let me ask you, [Juror No. 1], is it your opinion that if I
ask you all to go back and to continue to deliberate, that there is a
reasonable probability that you will reach agreement on something else, not
everything else, but perhaps any one or more of the other counts, in your
opinion, sir?

            “JUROR No.
1:  I think there’s a reasonable
possibility in exploring the--your instructions on, um, considering each charge
individually and also in the sense of forming a group decision.  I think there is a possibility of further
decisions--further agreements, I should say.

            “THE
COURT:  Okay.  All right. 
[Juror No. 2], what is your opinion, sir.

            “JUROR No.
2:  I doubt the possibility of agreement.

            “THE
COURT:  You doubt it on any of the other
five remaining?

            “JUROR No.
2:  Unless something dramatic changes, I
don’t think there will be a decision on those other five.

            “THE
COURT:  Okay.  [Juror No. 3], what is your opinion?

            “JUROR No.
3:  I agree.  We explored this possibility that you would
raise this, and, um, I would--I thought that we were all in the understanding
that we could not go further, that there was some absolutes that would not
change.

            “THE
COURT:  All right.  Let me ask this as a group:  Is there anyone else who does think that if I
asked you to continue your deliberations, there is a reasonable probability
that there may be some developments on even just one more count? [¶] It
doesn’t--all counts do not have to be decided. 
Each is a separate consideration, and you, obviously, know that, because
you’ve come to a decision on one count. [¶] Two people have said, Yes, there
is.  Two people have said, No, I don’t
think so. [¶] Please raise your hand if you think there is a possibility if I
ask you to continue your discussions and your deliberations together, please.
[¶] (Jurors comply.) [¶] Okay.

            “JUROR No.
3:  Is it what we want?

            “THE
COURT:  Well, I will share with you that
the law provides if any member of the jury indicates there’s a reasonable
probability that there could be further developments, then it’s my obligation
to ask you to continue in your deliberations. [¶] So it’s kind of late.  What we’re going to do--I see we have extra
deputies in the courtroom, so, Mr. Bailiff, may I ask you to go and get Verdict
Form Number 5 for me, please. [¶] . . . [¶] Because we’ll formally return that
to court and put it under seal. [¶] (Bailiff complies.) [¶] And then what we’ll
do, ‘cause it’s late, we’ll send you home tonight.  Okay? 
And you just think about your deliberations, and these kinds of things,
and I want you to think about if there’s any further assistance I can give
you.  If you’d like to ask for further
clarification on any of the instructions, if you’d like to ask for any further
guidance in any way, you’re welcome to do so. 
If not, that’s fine as well, but think about it overnight. [¶] I know
you’re working hard.  I know you’re
working on this with good faith, and as I said, some of the jurors have
indicated that it is reasonably possible or probable.  So we’ll send you back based on that
assessment. [¶] And I do want you to come back tomorrow with a fresh and open
mind. [¶] Do remember there’s an instruction that I’ve given you that you
should consider--if you disagree with another juror, you should think about the
reasons that they articulate for their position.  You should try and articulate the reasons for
your position.  You should not give up
your position just because another juror disagrees with you, of course.  Each of you will make your own independent
decisions, but you should give consideration to the thoughts of each member of
the jury, and there’s a particular instruction that says that better than I
just did, but I’ll refer you back to it. [¶] . . . [¶]

            “JUROR No.
11:  Judge, I understood that we came in
here because we had reached unanimity on our disagreements about the other
counts.  I’m just amazed that we are now
being asked on come again to reconsider what I thought we had all already
decided.

            “THE
COURT:  Well, I asked a question, and
four jurors raised their hands in answer to the question, is there a reasonable
probability that if I ask you to deliberate further, the jury might arrive at a
verdict?  Four people said yes, and given
that response, it is my obligation to ask you to continue to deliberate.” 

            The next
day, the jury deliberated and reached verdicts on counts 3 and 4.  The foreperson represented that there was no
reasonable probability that verdicts could be reached on counts 1, 2, and 6.

jury coersion

            Defendant
contends that the trial court erred by giving the jury a coercive instruction
after it returned the verdict on count 5. 
According to defendant, “the trial court inaccurately and coercively
told the jurors that it was obligated
to have them continue their deliberations so long as even one juror believed
additional verdicts might be possible.” 
He cites authority for the proposition that “a trial court has the
discretion to declare a mistrial without the jury’s unanimous endorsement of
that action” if it satisfactorily appears that there is no reasonable
probability that the jury can agree.  He
reasons that “The trial court’s erroneous explanation of the standard for
declaring a mistrial left the jurors with the false impression that they would
necessarily be stuck deliberating for as long as even one among their number
believed further verdicts might be possible.” 
He concludes that this “amplified the pressure to return verdicts and
skewed the dynamic of the jury room towards a paramount imperative of
unanimity.”  He bolsters his conclusion
by arguing that the trial court “failed to specify whether a juror might permissibly
abandon her individual judgment to
achieve a consensus,” “invited a juror to consider conforming her
‘independent decision[]’ to the thoughts of her peers,” “said nothing to the
deadlocked jury of ‘the right of both the People and the defendant to the
individual judgment of each juror on the issue of guilt,’ ” and “never followed
up on its promise by referring the jury to the ‘particular instruction’ that it
had in mind.” 

            name="SDU_13">Preliminarily,
the People argue that defendant forfeited his present contention by failing to
object to the challenged instruction. 
They rely on People v. Neufer (1994) 30 Cal.App.4th 244.  There, however, the defendant was arguing
that, after learning that the jurors were split 11 to 1 in favor of guilt, the
trial court erred by requiring them to continue to deliberate at all.  (Id. at p. 253.)  He was not arguing that the trial court gave
an improperly coercive instruction. 
Here, by contrast, defendant is raising precisely that argument.  Hence, the controlling principle is that an
objection is not necessary to preserve a claim that a jury instruction violated
the defendant’s substantial rights.  (§§
1176, 1259, 1469; see also People v. Barraza (1979) 23 Cal.3d 675,
683-684 [assertedly coercive instruction was reviewable despite defense
counsel’s statement that he had no objection to it].)

            “The court may ask
jurors to continue deliberating where, in the exercise of its discretion, it
finds a ‘reasonable probability’ of agreement.” 
(People v. Pride (1992) 3 Cal.4th 195, 265, quoting § 1140.)  “ ‘The court must exercise its power,
however, without coercion of the jury,
so as to avoid displacing the jury’s independent judgment
“in favor of considerations of compromise and expediency.”  [Citation.]’ 
[Citation.]  The question of name="SR;7345">coercion is necessarily dependent on the facts and
circumstances of each case.”  (People
v. Sandoval (1992) 4 Cal.4th 155, 195-196, quoting People v. Breaux
(1991) 1 Cal.4th 281, 319, quoting People v. Carter (1968) 68 Cal.2d
810, 817.)

            To determine whether
an instruction is coercive, we ask “whether [it] tend[s] to impose such
pressure on jurors to reach a verdict that we are uncertain of the accuracy and
integrity of the jury’s stated conclusion. 
This determination . . . is perhaps best characterized as requiring a
generalized assessment of the potential effect of a given instruction on the
fact finding process, rather than as an attempted inquiry into the actual
volitional quality of a particular jury verdict.”  (People v. Gainer (1977) 19 Cal.3d
835, 850.)

            Here, defendant’s
premise is that the trial court, in a rather lengthy dialogue, coerced the jury
by instructing that it was obligated
to order the jury to continue deliberating rather than instructing something
akin to that it was choosing to order
the jury to continue deliberating.  But
regardless whether the word “obligated” conveyed an incorrect standard for
declaring a mistrial, we disagree with defendant that the instruction, as
given, tended to impose such pressure on the jurors to reach a verdict that we
are uncertain of the accuracy and integrity of the jury’s stated conclusion.

First, the instruction on its face does not state,
as defendant supposes, that the trial court “was obligated to have [the jury] continue their deliberations so long
as even one juror believed additional verdicts might be possible.”  The trial court twice stated that it was
obligated “to ask” the jury to continue deliberating because a member or
members saw a reasonable possibility of a verdict.  It explained that “some of the jurors have
indicated that it is reasonably possible or probable.  So we’ll send you back based on that
assessment.”  This does not convey that
the jury “would necessarily be stuck deliberating” as long as one member
believed further verdicts might be possible. 
Thus, it is not reasonably likely that the jurors understood the
instruction as defendant suggests.  (>People v. Nem (2003) 114 Cal.App.4th
160, 165.)

Second, the instruction is, at worst,
ambiguous.  In the present context, a
reasonable juror could construe the concept “obligated to ask” in the same way
as a layman might construe the phrase “choosing to ask” rather than as a
statement of the legal standard for declaring a mistrial that will keep jurors
deliberating until no member believes further verdicts might be possible.  “ ‘Jurors do not sit in solitary isolation
booths parsing instructions for subtle shades of meaning in the same way the
lawyers might.’ ”  (People v. Williams (1995) 40 Cal.App.4th 446, 457.)  Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation. 
(People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.)

And third, as we mentioned earlier,
defense counsel’s failure to object does not rise to the level of a
forfeiture.  However, it does support our
conclusion that the instruction as a whole was not coercive:  “[W]here, as here, defense counsel does not
object to a supplemental instruction, ‘such an omission indicates that the
potential for coercion argued now was not apparent to one
on the spot.’ ”  (People v. Whaley
(2007) 152 Cal.App.4th 968, 983, quoting Lowenfield v. Phelps (1988) 484
U.S. 231, 240.)

In a related point, defendant
contends that he received ineffective assistance of counsel because “at a
crucial moment in the jury’s deliberations--the announcement of an impasse
after a lengthy deliberation relative to the length of the evidentiary portion
of trial--trial counsel should have ensured that the court adequately
instructed the jury on the venerable principle that ‘jurors are not required to
surrender their honest convictions for the mere purpose of agreeing upon a
verdict.’ ”  Defendant fails to carry his
appellate burden.

            To prevail
on a claim of ineffective assistance of
counsel, a defendant “must establish not only deficient
performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice. 
[Citation.]  Tactical errors are
generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts.  [Citation.] 
To the extent the record on appeal fails to disclose why name="SR;2689">counsel acted or failed to act in the manner challenged, we
will affirm the judgment ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation . . . .’ 
[Citation.]  Finally, prejudice
must be affirmatively proved; the record must demonstrate ‘a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ”  (People v. Bolin (1998) 18 Cal.4th
297, 333.)

Here, before the jury began deliberating,
the trial court instructed it in the language of CALCRIM No. 3550 as
follows:  “You should try and agree on a
verdict if you can.  Each of you must
decide the case for yourself, but only after you have discussed the evidence
with all of the other jurors. [¶] Do not hesitate to change your mind if you
become convinced that you’re wrong, but do not change your mind just because
other jurors disagree.”  And, as we have
recounted, in the instructions given after the jury returned the verdict on
count 5, the trial court informed the jury again that “[y]ou should not give up
your position just because another juror disagrees with you, of course.” 

These instructions are sufficient
to inform the jury that one should not surrender an honest conviction for the
mere purpose of agreeing on a verdict.

“The trial court need not give
instructions which are covered by other properly given instructions.”  (People v. Tapia (1994) 25 Cal.App.4th 984, 1028.)

            Thus, name="SR;4017">since trial counsel could have reasonably concluded that the
trial court’s instructions were adequate, defendant fails
to demonstrate deficient performance. 
And, since the given instructions adequately informed the jury of the
no-surrender principle, defendant fails to demonstrate prejudice--that there is
a reasonable probability the verdict would have been different had
defense counsel requested and the trial court given another instruction on the
no-surrender principle.

serious-felony enhancement

name="sp_999_4">Section 667, subdivision (a),
provides that any person convicted of a serious felony, who previously has been
convicted of a serious felony, shall receive, in addition to the sentence
imposed by the court for the present offense, a consecutive five-year
enhancement for each prior conviction on charges brought and tried
separately.  In addition, this
subdivision provides:  “(4) As used in
this subdivision, ‘serious felony’ means a serious felony listed in subdivision
(c) of Section 1192.7.”  (§ 667, subd.
(a)(4).)  Section 1192.7, subdivision
(c)(37), in turn, lists as a serious felony “intimidation of victims or
witnesses, in violation of Section 136.1.”

Defendant was convicted of felony violations of
section 136.1, subdivisions (b)(2) and (a)(2). 
At sentencing, the trial court imposed a consecutive five-year enhancement
for a prior serious-felony conviction. 
Defendant contends that a conviction for a violation of section 136.1,
subdivision (b)(2) or (a)(2) is not a serious felony as defined in section
1192.7.

Without citation to authority, defendant essentially
argues that only section 136.1, subdivision (c)(1),href="#_ftn2" name="_ftnref2" title="">[2]name=F00772006681183> which requires an express or implied threat of
force or violence, qualifies as a serious felony within the meaning of section
1192.7, subdivision (a)(37), because violations of section 136.1, subdivisions
(b)(2) or (a)(2) can be committed without intimidating a witness or
victim.  In short, according to
defendant, only section 136.1, subdivision (c)(1), is witness intimidation
within the meaning of section 1192.7, subdivision (c)(37).

            name=B00772006681183>Defendant acknowledges that the court in name="SR;3163">People v. Neely (2004) 124 Cal.App.4th 1258 (>Neely), holds that all section 136.1
felony violations, not only section 136.1, subdivision (c)(1) violations, are
serious felonies within the meaning of section 1192.7, subdivision (c)(37).  The court stated:  “We conclude all felony violations of Penal
Code section 136.1 are serious felonies within the meaning of Penal Code
Section 1192.7, subdivision (c)(37) . . . based on the language of Penal Code
section 1192.7, subdivision (c)(37), the language of Penal Code section 136.1,
the legislative aid to statutory construction found in Penal Code section 7.5,
and a reading of the provision in the context of the entire statutory
scheme.  We note that such a construction
is also consistent with the intent of the voters to expand the list of serious
felonies and make them subject to increased penalties.”  (Neely, supra, at p. 1268.)

Defendant, however, urges that Neely was wrongly decided.

“The rules governing statutory construction are well
settled.  We begin with the fundamental
premise that the objective of statutory interpretation is to ascertain and
effectuate legislative intent. 
[Citations.]  To determine
legislative intent, we turn first, to the words of the statute, giving them
their usual and ordinary meaning. 
[Citations.]  When the language of
a statute is clear, we need go no further. 
However, when the language is susceptible of more than one reasonable
interpretation, we look to a variety of extrinsic aids, including the
ostensible objects to be achieved, the evils to be remedied, the legislative
history, public policy, contemporaneous administrative construction, and the
statutory scheme of which the statute is a part.”  (People v. Flores (2003) 30 Cal.4th
1059, 1063.)

In March 2000, the voters approved
Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998,
which, among other changes, added to the list of serious felonies,
“intimidation of victims or witnesses, in violation of section 136.1.”  (§ 1192.7, subd. (c)(37).)

name="citeas((Cite_as:_2005_WL_1252383,_*5_(Ca">“ ‘In interpreting a voter
initiative . . . we apply the same principles that govern statutory
construction.  [Citation.]  Thus, “we turn first to the language of the
statute, giving the words their ordinary meaning.”  [Citation.] 
The statutory language must also be construed in the context of the
statute as a whole and the overall statutory scheme [in light of the
electorate’s intent].  [Citation.]  When the language is ambiguous, “we refer to
other indicia of the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet.” ’ ” 
(People v. Briceno (2004) 34 Cal.4th 451, 459.)

Hence, we look to the language of
section 1192.7, subdivision (c)(37).  It
refers to “intimidation of victims or witnesses” in violation of section
136.1.  The reference to section 136.1 is
not limited by reference to a specific subdivision.  On its face, it appears to encompass the
entire code section.  Accordingly, we
need go no further.  “When the language
of a statute or constitutional provision is clear and unambiguous, judicial
construction is not necessary and the court should not engage in it.”  (Agnew v. State Bd. of Equalization
(1999) 21 Cal.4th 310, 323.)

In any event, we observe that
subdivisions (b)(2) and (a)(2) of section 136.1 encompass the concept of
intimidation.

            The word
intimidation comes from the verb to intimidate. 
(Webster’s 3d New Internat. Dict. (1993) p. 1184.)  The dictionary definition of “intimidate” is
“to make timid or fearful:  inspire or
affect with fear.”  (Ibid.)  One can become fearful, and thus, intimidated
by someone or something without any force or violence being present.  Take this case as an example.  If Esparza had cared for defendant and did
not want him to go to prison, his pleas to her to “drop the charges,” could
have made her fearful of losing him.  As
such, she might not have testified.  No
force or violence would be present, but Esparza might have been affected with fear
into not testifying.  Hence, she would
have been intimidated into not testifying.

Beyond the technical definition of
serious felony, the crime of deliberately trying to prevent facts from being
revealed before a criminal tribunal is a matter of the utmost gravity.  Courts cannot function properly when attempts
are made to manipulate witnesses and prevent evidence from seeing the light of
day.  We reject defendant’s contention
that Neely was wrongly decided.



 

disposition

            The
judgments in Santa Cruz County case Nos. F19909, WF00879, and W13885 are
affirmed.

 

 

 

 

                                                                       

Premo,
J.

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

                                                                       

Rushing, P.J.

 

 

 

 

 

 

 

                                                                       

Elia, J.