Filed 4/19/13 P. v. Cole CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
STEIN HEATH COLE,
Defendant and
Appellant.
F062418
(Super.
Ct. No. 09CM1889)
APPEAL
from a judgment of the Superior Court
of
Daniel G.
Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Appellant
Stein Heath Cole maintains the following:
(1) the trial court erred when it allowed prior bad acts evidence as the
evidence was irrelevant and prohibited by Evidence Code sections 352 and 1101,
subdivision (b); (2) he was deprived of his state and federal
to a reliable verdict, because the great bodily injury enhancement pursuant to
Penal Code
substantial evidence; (3) the evidence was insufficient to prove attempted
dissuasion of a witness; and (4) the trial court erred when it imposed consecutive
terms on counts 9 through 12 as those terms are prohibited by section 654. We affirm the judgment.
PROCEDURAL BACKGROUND
In an
information filed August 4, 2009,
appellant was charged with corporal injury to his spouse, Kim Cole
resisting arrest (§ 69; counts 2 & 15), criminal threats (§ 422;
counts 3 & 14), unauthorized cultivation of marijuana (Health & Saf.
Code, § 11358; count 4), possession of marijuana for sale (Health &
Saf. Code, § 11359; count 5), being a felon in possession of a firearm
(§ 12021, subd. (a)(1); count 6), possession of an assault weapon
(§ 12280, subd. (b); count 7), attempting to dissuade a witness
(§ 136.1, subd. (a)(2); counts 8-12), resisting arrest (§ 148; counts
13 & 17), and possession of dangerous fireworks (Health & Saf. Code,
§ 12677; count 16). It was further
alleged that appellant personally inflicted great bodily injury in
circumstances involving domestic violence in violation of section 12022.7,
subdivision (e).
Before trial,
appellant pled no contest to misdemeanor possession of dangerous fireworks, and
the People dismissed the possession of an assault weapon charged in count 7.
Following
jury trial, appellant was convicted of all remaining counts and the enhancement
was found true. He was sentenced to a
total of 13 years 8 months in state prison.
FACTUAL BACKGROUND
On December 11,
2008, at about 10:30 a.m.
dispatcher Martha Augustus received a 911 call originating from appellant’s
residence. The call was an open line; no
one spoke directly with the dispatcher but the dispatcher could hear a male and
a female arguing in the background. Law
enforcement personnel were dispatched to the scene.
Officer
Alex Chavarria arrived first. He
approached the front door of the home and could hear a male shouting and a
female crying inside the home. The
officer knew appellant and his wife lived in the home. After another officer arrived to assist,
Chavarria knocked on the front door, yet received no response. Chavarria radioed for the assistance of his
supervisor, Sergeant Jason Bietz. Once
Bietz arrived on scene and was briefed by Chavarria, the two men approached the
front of the home. Both the interior
door and the security screen door were closed.
After
appellant opened the interior door only, the officers advised him they were
there to make a welfare check of the female occupant. Appellant replied that he and his wife had
had a verbal disagreement but that she was fine. Appellant refused to exit the home and closed
the interior door, never having opened the security screen door. He did not respond to a repeated request for
entry. Chavarria retrieved a pry bar
from his patrol vehicle and Bietz began to apply force to the door with the pry
bar. Appellant was heard making threats
to shoot if the officers persisted.
Fearing for their safety, the officers retreated. Eventually, appellant exited the house and
surrendered.
Bietz made
contact with Kim and her three-year-old son.
Kim had injuries to her face.
Those injuries included lumps and swelling on her forehead, a fresh
abrasion to the bridge of her nose, and blood present in her left eye. A protective sweep of the home revealed no
other persons were present. During that
sweep, Bietz and Chavarria noticed a number of marijuana plants in various
stages of growth. Bietz contacted the
Kings County Narcotics Task Force.
A search
warrant was obtained and a more thorough search was conducted. The search revealed that appellant used his
home to grow marijuana. Processed marijuana
and several firearms were found in two storage sheds located on the property.
Senior
Criminalist Steven Patton with the California Department of Justice analyzed
the material confiscated from appellant’s home.
Random sampling and subsequent analysis confirmed the green leafy
material was marijuana. Patton tested
8.31 pounds of the material submitted.
While
awaiting trial, appellant made several telephone calls from the jail to his
home between December 18 and December 26,
2008. Those calls were
recorded and Bietz heard dozens of the recordings. In the recordings, appellant can be heard
telling Kim not to go to court and to avoid being served with a subpoena. At one point, appellant tells Kim she may
have to leave town to avoid service. In
another call, appellant asks Kim to visit him at the jail so that the two can
get their story straight; appellant tells Kim that a woman named Priscilla
caused her injuries. Finally, in another
call, appellant tells Kim that if she were to die, her statements to law
enforcement could be used against him in her absence. The recordings were played for the jury.
Defense Case
Appellant
testified that he lives two lives:
growing marijuana and being a family man. As a result of living these two lives, he
does not sleep much.
On December 11, 2008, he had been
sleeping when he was awakened by a loud sound, like a door slamming. Kim called out to him and had her hand over
her eye. When Kim pulled her hand away
from her face, appellant noticed redness.
She was yelling and screaming.
Appellant went past Kim and opened the door and security screen. Looking out into the yard, he noticed a woman
that he had been having an affair with run into his neighbor’s yard.
When
appellant closed the door to the house, he and Kim began arguing about
Priscilla, the woman with whom he had the affair. His three-year-old son called 911. The arguing and screaming that could be heard
by the dispatcher during the calls involved accusations from Kim as well as the
two throwing water and soda at one another.
After the two calmed down, appellant got an ice pack for Kim and, while
doing so, he heard a knock at the door.
Once he realized there were officers at his door, appellant
panicked. Because he’d had a recent
incident with his neighbors, he assumed the officers’ presence was the result
of a set up.
Eventually
he went to the door and advised Bietz that there was no problem and that the
officers could leave. Instead, Bietz
pointed his weapon at appellant and threatened to blow his head off if he did
not open the door. Appellant replied,
“Not today you’re not,†and slammed the door.
Appellant
called 911 because he was afraid for his life.
He did not have a shotgun and was bluffing when he said he would shoot
the officers. After calling his
attorney, appellant ultimately exited the house. However, once he was outside, officers placed
a sawed-off chrome shotgun to his head before handcuffing him and placing him
in a patrol car.
Because the
weapons located in a shed on his property belonged to his father, appellant did
not believe he was in possession of any firearms. He grew marijuana for medicinal purposes, and
he had medical cards permitting him to do so.
Appellant used marijuana to treat his chronic pain. He also grew it to assist other individuals
who had medical marijuana cards—there were a total of seven such cards or
recommendations in his home. Appellant
denied selling marijuana; he did, however, donate it to co-ops like the Compassionate
Cannabis Information
Center in Goshen. Further, appellant believed he never exceeded
the limit that he was permitted to possess pursuant to the various
recommendations in his possession and that the amount he possessed was for
personal use.
Appellant
was aware phone calls were recorded in the Kings
County jail. He used the telephone in the pod several
times and taunted law enforcement officers during those calls because he
believed he had been set up. When
questioned specifically on cross-examination about a number of the telephone
calls, appellant denied telling Kim not to come to court or to avoid a
subpoena. He explained he was trying to
let her know that if she did not come to court to tell the truth about
Priscilla striking her, he would be “screwed.â€
Appellant denied collaborating with Kim about a story they would tell in
court. He was only “refreshing†her memory about what had
happened. Further, Kim was worried that
if she did show up in court, her son would be taken by child protective
services. This is so, appellant explained,
because Kim had been threatened by law enforcement officials that if she did
not make a statement against him about this incident, her son would be taken
from her.
DISCUSSION
I. Admission of the Prior Bad
Acts Evidence
Appellant
contends the admission of prior bad acts evidence was irrelevant and prohibited
by Evidence Code sections 352 and 1101, subdivision (b). This contention pertains to the criminal
threats alleged in counts 3 and 14 involving Bietz and Chavarria. He argues reversible error in the admission
of two prior bad acts: (1) that
Chavarria was aware appellant had been previously involved in a hostage
situation and, (2) that appellant’s neighbors had recently reported his having
threatened them with a gun.
Relevance
“‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.†(Evid. Code, § 210.) Evidence Code section 351 states that
“[e]xcept as otherwise provided by statute, all relevant evidence is
admissible.â€
Here, the
evidence in question is appellant’s purported prior involvement in a hostage
situation and his more recent involvement in a threat to his neighbors
involving a gun. The evidence was
offered to establish an element of the crime of criminal threat, to wit: whether the person threatened was reasonably in
sustained fear for his or her own safety.
(§ 422.) Appellant had
threatened to shoot when law enforcement attempted to enter his home after he
refused to comply with their requests for entry. Appellant admitted making the statement, yet
claimed he was bluffing. Whether
Chavarria and Bietz were reasonably in sustained fear for their own safety is
evidence that would tend to prove or disprove a disputed fact of consequence to
the determination of the action, and thus, the evidence is relevant.
A. Evidence Code section 1101,
subdivision (b)
“(a)
Except as provided in this section and in Sections 1102, 1103, 1108, and 1109,
evidence of a person’s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or
her conduct on a specified occasion.
“(b)
Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an
unlawful sexual act or attempted unlawful sexual act did not reasonably and in
good faith believe that the victim consented) other than his or her disposition
to commit such an act.†(Evid. Code,
§ 1101.)
“Subdivision
(a) of section 1101 prohibits admission of evidence of a person’s character,
including evidence of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies,
however, that this rule does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some fact other than the
person’s character or disposition.†(
393.)
The trial
court’s ruling under either Evidence Code section 1101 or Evidence Code section
352 is reviewed on appeal for abuse of discretion. (People
v. Homick (2012) 55 Cal.4th 816, 865; People
v. Lenart (2004) 32 Cal.4th 1107, 1123; People
v. Kipp (1998) 18 Cal.4th 349, 369, 371.)
Evidence of
crimes not charged in the present proceeding, though sometimes admissible for
the purposes set forth in Evidence Code section 1101, subdivision (b), must be
handled with care:
“It is … well settled that evidence may be admitted,
even though it embraces evidence of the commission of another crime, if it
logically tends to prove a material element in the People’s case. [Citations.]
However, ‘It has frequently been recognized … that because of the sound
reasons behind the general rule of exclusion, the relevancy of evidence of
other crimes, and therefore its admissibility, must be examined with care. [Citation.]
The evidence should be received with “extreme caution,†and if its
connection with the crime charged is not clearly perceived, the doubt should be
resolved in favor of the accused.
[Citations.]’†(
724.)
Even when
evidence is relevant under Evidence Code section 1101, subdivision (b), it must
be excluded under Evidence Code section 352 if its prejudicial effect
substantially outweighs its probative value:
“Our conclusion that section 1101 does not require
exclusion of the evidence of defendant’s uncharged misconduct, because that
evidence is relevant to prove a relevant fact other than defendant’s criminal
disposition, does not end our inquiry.
Evidence of uncharged offenses ‘is so prejudicial that its admission
requires extremely careful analysis.
[Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is]
inherent in [such] evidence,†uncharged offenses are admissible only if they
have substantial probative
value.’ [Citation.] [¶] … We thus proceed to examine whether
the probative value of the evidence of defendant’s uncharged offenses is
‘substantially outweighed by the probability that its admission [would] …
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.’ (Evid. Code, § 352.)†(People
v. Ewoldt, supra, 7 Cal.4th at p.
404.)
In applying
these principles to this matter, we conclude that the trial court acted within
its discretion in admitting the uncharged offense evidence to show the state of
mind of the victims, Chavarria and Bietz.
Specifically,
Chavarria testified outside the presence of the jury that he was aware at the
time of this incident that appellant had been in prison for a hostage situation
and, further, that appellant’s neighbors had recently reported that he had
threatened them with a gun. Defense
counsel objected, indicating appellant did not go to prison for a hostage
situation and that a confidential informant had indicated appellant had pointed
a gun at him, according to discovery provided.
Because the confidential informant could not be cross-examined and
because the evidence was “totally tenuous,†counsel argued against its
admission. The prosecutor explained that
the information was not being offered for the truth of the matter asserted;
rather, it was offered to show the officers’ state of mind that it was
reasonable to believe appellant was capable of shooting at officers, had access
to firearms, and had been previously involved in a “hostile situation.†After arguing to the court that the evidence
was improper and speculative, defense counsel expressly objected to the
evidence for a lack of foundation, its prejudicial effect, and lastly, on the
basis of hearsay.
The trial
court explained its ruling as follows:
“The Court:
All right, the testimony that is proposed—that has been proffered
is to demonstrate fear, sustained fear that Officer Chavarria was experiencing
on that day, that is an element of the offense and therefore his state of mind
is relevant even though the statement is—lacks foundation and it is
hearsay. The Court will give a limiting
instruction to the jury stating that they can consider what
Mr. Chavarria’s belief is, but they cannot consider his testimony for the
truth of the matter. In other words, he
is going to testify that he thought that … he had information that neighbors
were complaining about [appellant] walking around with a gun.
“[Defense Counsel]: Threatening him with a gun is what he said, I
think that is what he said.
“The Court: Threatening him with a
gun. That is hearsay, however it is
relevant. The statement and also the 352
objection will be overruled as to that particular statement. Certainly it is prejudicial, but [its]
probative value substantially outweighs prejudicial effect.â€
After clarification that appellant had not been “convicted
of a hostage situation,â€
name="_ftnref3" title="">[3] defense counsel objected that the information
was totally unreliable and highly prejudicial.
The trial court indicated the statements would be admitted along with a
limiting instruction.
Officer
Chavarria testified that he believed appellant had “an arrest regarding an
incident … where he was involved in a hostage situation†and that weeks prior
to this incident, appellant’s neighbors complained he was threatening them with
a gun. After overruling defense
counsel’s objections, the trial court read the limiting instruction to the
jury. It is presumed the jury followed
the court’s instructions. (
Section 422
“incorporates a mental element on the part of not only the defendant but the
victim as well. In order to establish a
section 422 violation, the prosecution must establish … that the victim was in
a state of ‘sustained fear.’ The
prosecution must additionally show that the nature of the threat, both on ‘its
face and under the circumstances in which it is made,’ was such as to convey to
the victim an immediate prospect of execution of the threat and to render the
victim’s fear reasonable.†(
962, 966-967.)
In this
case, appellant’s statements that if officers broke down his door he would
shoot were heard by Bietz and Chavarria.
Both testified the statements caused them fear, both retreated to safety
for cover, and both remained concerned until appellant surrendered. The evidence was properly admitted to
establish the mental element required of the victims pursuant to section
422. (People v. Garrett, supra,
30 Cal.App.4th at p. 967 [“Seldom will evidence of a defendant’s prior criminal
conduct be ruled inadmissible when it is the primary basis for establishing a
crucial element of the charged crimeâ€].)
Despite
appellant’s argument to the contrary, the prior uncharged offense evidence was
not offered as evidence of his intent.
Rather, the evidence was offered to prove the officers’ sustained fear
in light of appellant’s threats to shoot them if they persisted in attempting
to enter his home.
We disagree
with appellant’s argument that the prior uncharged evidence was too dissimilar
to have had a bearing on the officers’ state of mind. Instead, we find sufficient similarity
between the hostage-type situation, the brandishing a weapon incident, and this
incident—where appellant refused to allow officers to speak with his wife,
refused their requests for entry, and threatened to shoot the officers if they
entered his home.
In sum,
this evidence was admissible and it was not offered to prove appellant’s
character, disposition, or intent.
B. Evidence Code section 352
Having
concluded that the uncharged offense evidence was admissible to prove the
officers’ sustained fear following appellant’s threat, we turn to whether the
evidence should have been excluded under Evidence Code section 352.
A court may
exclude evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.†(Evid. Code,
§ 352.) A trial court retains the
discretion to admit or exclude evidence under Evidence Code section 352. The exercise of that discretion will not be
disturbed on appeal absent a showing that the trial court exercised its
discretion in an arbitrary, capricious or patently absurd manner. (People
v. Rodriguez (1999) 20 Cal.4th 1, 9.)
The
probative value of the evidence in question was significant. If believed, the prosecution’s burden to meet
an element of the criminal threat crimes alleged was met—that appellant’s
threats to shoot the officers trying to enter his home caused those officers to
operate in a state of sustained fear.
Prior to admitting the prior acts evidence, the trial court carefully
evaluated the evidence pursuant to Evidence Code section 352. Chavarria was then permitted to testify about
the acts of which he had knowledge at the time the threats were made. The trial court expressly acknowledged that
the uncharged offense evidence was in fact prejudicial, but determined its
probative value on the issue of the officers’ fear substantially outweighed the
prejudicial effect. The trial court’s
determination was not arbitrary or capricious, nor was it patently absurd. Appellant’s contention is rejected.
Appellant
also claims the prosecutor used the prior uncharged evidence as “part of the
central theme of his case, and mainly to rebut appellant’s denial of
culpability.†Our review of the record
reveals otherwise.
It is plain
from the closing argument that the prosecutor relied upon all of the evidence,
including the recordings of the 911 calls and the calls from the jail, the
photographs, and all testimony given to rebut appellant’s version of the
events. The prosecutor referenced the
prior uncharged evidence briefly while explaining to the jury how the People
had met their burden of establishing the fifth element of making a criminal
threat—that Chavarria and Bietz were in sustained fear for their safety. The prosecutor’s closing argument lasted
approximately an hour and a half. It encompasses
36 pages of the reporter’s transcript.
Yet the prosecutor’s reference to the prior uncharged evidence amounts
to only two paragraphs in about a single page of that portion of the
transcript. Thus, we disagree the
prosecutor’s reference amounted to the “central theme of his case†and reject
appellant’s contention.
II. There Was Substantial
Evidence of Great Bodily Injury
Appellant
challenges the sufficiency of the evidence to prove he inflicted great bodily
injury pursuant to section 12022.7 and argues his constitutional rights to due
process and a reliable verdict have been violated. We disagree.
In
assessing a claim of insufficiency of the evidence, the reviewing court’s task
is to review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—evidence that is reasonable,
credible, and of solid value upon which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.
It is the jury that must be convinced of a defendant’s guilt beyond a
reasonable doubt. If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment. (People
v. Rodriguez, supra, 20 Cal.4th
at p. 11; see also Jackson v. Virginia
(1979) 443 U.S. 307, 317-320; People v.
Johnson (1980) 26 Cal.3d 557, 578.)
In
reviewing a challenge to the sufficiency of the evidence, appellate courts do
not determine the facts. We examine the
record as a whole in the light most favorable to the judgment and presume the
existence of every fact the trier of fact could reasonably deduce from the
evidence in support of the judgment. (
1053.) If the verdict is supported by
substantial evidence, a reviewing court must accord due deference to the trier
of fact and not substitute its evaluation of a witness’s credibility for that
of the fact finder. (
1206.) The testimony of a single
witness—unless physically impossible or inherently improbable—is sufficient for
a conviction. (Evid. Code, § 411;
1181.)
An
appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (
396.) Before the judgment of the trial
court can be set aside for insufficiency of the evidence, “it must clearly
appear that on no hypothesis whatever is there sufficient substantial evidence
to support the verdict of the jury.†(
423, 429; see People v. Conners
(2008) 168 Cal.App.4th 443, 453.)
Once the
jury found appellant had violated section 273.5, subdivision (a)—corporal
injury of a spouse—it was next required to determine whether appellant
inflicted great bodily injury in the commission of that offense. Great bodily injury “means a significant or
substantial physical injury.â€
(§ 12022.7, subd. (f); see § 12022.8; People v. Escobar (1992) 3 Cal.4th 740, 749-750.) The California Supreme Court has long held
this is a factual, not a legal determination.
(People v. Escobar,
significant or substantial from an injury that does not quite meet the
description.’†(Escobar, supra, at p.
752, quoting People v. Jaramillo
(1979) 98 Cal.App.3d 830, 836; People v.
Clay (1984) 153 Cal.App.3d 433, 460.)
Where to draw that line is for the jury to decide.
Subdivision
(e) of section 12022.7 provides as follows:
“Any person who personally inflicts great bodily injury
under circumstances involving domestic violence in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for three, four, or five years. As used in this subdivision, ‘domestic
violence’ has the meaning provided in subdivision (b) of Section 13700.â€
Because the
victim of appellant’s crime, his wife Kim, did not testify, evidence regarding
her injuries was primarily admitted through the testimony of Sergeant Bietz and
the photographs taken of Kim’s face on the date of the incident. Bietz testified that upon contacting Kim he
noticed several fresh injuries to her face.
Two of those injuries were lumps that increased in size and began to
darken several minutes after Bietz’s initial contact with Kim. She also had a slight, bright red, abrasion
on the bridge of her nose, and what Bietz believed was a broken blood vessel in
her left eye, “evident by a large amount of blood in the eye.†Bietz identified the photographs taken of Kim
that depicted her injuries. With
particular regard to the eye injury, Bietz identified blood visible in Kim’s
left eye in People’s exhibit Nos. 15 and 16. The photographs were admitted without
objection. Notably, too, the jury
listened to the recorded 911 calls received from appellant’s residence; a
female can be heard screaming in the background.
During
closing argument, the prosecutor stated the following:
“In
this case we charged in addition to [section 273.5,] we have also charged great
bodily injury. And once again you as the
triers of fact, you are now the judges, you get to look at those photos and,
you know, say is this GBI, is this some serious injury.
“Now,
if you look at Exhibit No. 18 you can probably look at this photograph and
say that is not enough. This is a bump
on the head, and although it shouldn’t have happened, it is not a great
injury. It is not something that is
significant, more than minor or moderate harm.
The same thing with the right eye, above the right eye, and even the
scratch on the nose. Exhibit
No. 16, once again you are the triers of fact, you get to make a decision
whether that is GBI. I am not going to
argue to you that scratch on the nose is GBI, we all receive scratches a number
of different times, is that more than minor or moderate harm, you get to decide
based on all the circumstances.
“But in
addition to that scratch on the nose you get to see her eye, this is what the
People are arguing are more than minor or moderate harm, and you get to see
that in number 12[
there appears to be some damage to the eye based on what you see in this
photograph. You look at this, this is
red inside. The eye itself it appears to
be bleeding inside the eye, but you are the jury, you get to take a look at
these photographs, both photographs 15 and 16 and you get to make a
determination based on what the jury instruction tells you as it relates to
what constitutes GBI. The People would
argue to you that this is in fact GBI, this is more than minor harm. This is not a scratch on the nose, this is
not a minor bump on the forehead. This
is a situation where she has been struck in the eye with enough force to cause
fairly serious injury to that eye, which is illustrated in the photographs.â€
The jury
was instructed pursuant to CALCRIM No. 3163, the trial court stating:
“If you
find [appellant] guilty of the crime charged in Count 1, inflicting injury on a
spouse resulting in a traumatic condition you must decide whether the People
have proved the additional allegation that [appellant] personally inflicted
great bodily injury on Kim Cole during the commission of that crime, and under
circumstances involving domestic violence.
“Great
bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm.
“Domestic
violence means abuse committed against an adult who is a spouse or person with
whom [appellant] has had a child. Abuse
means intentionally or recklessly causing or attempting to cause bodily injury
or placing another in reasonable fear of immediate serious bodily injury to
himself or herself or to someone else.
Committing the crime of violation of … Section 273.5, inflicting injury
on a spouse resulting in a traumatic condition is not by itself the infliction
of great bodily injury. The People have
the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden you
must find the allegation has not been proved.â€
Viewing
this evidence in the light most favorable to the judgment, and according due
deference to the factual findings of the jury, we find the evidence was
sufficient to support the jury’s finding of great bodily injury.
It is
logical to infer that blood pooled in the white or sclera of the eye represents
a significant or substantial injury was incurred. Multiple contusions, swelling and
discolorations on parts of a child’s body were enough to satisfy the definition
of great bodily injury in People v.
Jaramillo, supra, 98 Cal.App.3d
at page 837. In Jaramillo, after a bench trial, the court found the defendant
guilty of felony child abuse and found true a great bodily injury
enhancement. On appeal, the defendant
claimed the great bodily injury enhancement had been improperly imposed because
great bodily injury was an element of her child abuse conviction. As stated in Jaramillo, “while the issue might be close it appears that there
were sufficient facts upon which the court could base its finding of great
bodily injury and such a finding therefore will not be disturbed on
appeal.†(Id. at p. 836.) Like
facts upon which the jury could base its finding of great bodily injury. The photographs of Kim show bright red blood
present in the majority of the white portion of her left eye. The jury also heard, as we have, a woman
screaming in pain in the 911 recordings.
Further, an
injury need not be one that caused the victim to suffer permanent, prolonged or
protracted disfigurement, impairment, or loss of bodily function. (People
v. Escobar, supra, 3 Cal.4th at
p. 750 [great bodily injury found where rape victim suffered extensive bruises
and abrasions on legs, knees and elbows, injury to neck, and soreness in
vaginal area impairing ability to walk]; People
v. Cross (2008) 45 Cal.4th 58, 64 [injury “need not be so grave†as to
cause victim permanent, prolonged, or protracted bodily damage]; see also
718, 733 [multiple abrasions, lacerations, swelling and bruising to eye and
cheek]; People v. Corona (1989) 213
Cal.App.3d 589, 592-595 [great bodily injury finding sustained where victim
suffered swollen jaw, bruises to head and neck, and sore ribs].) Thus, appellant’s assertions that because Kim
did not seek medical attention for her injury, or that her ability to maintain
normal activities was not impaired in any way, are not persuasive. A jury can, and did, find Kim’s injury to
involve great bodily injury and that injury need not be permanent, prolonged,
or protracted.
Following
our review of the photographic evidence, the audio recordings, and Sergeant
Bietz’s testimony, we find this evidence sufficient to allow a jury to conclude
that Kim suffered great bodily injury within the meaning of section 12022.7.
III. The Evidence Pertaining to
Appellant’s Convictions for Dissuading a Witness Is Sufficient
Appellant
argues the evidence pertaining to his convictions for dissuading a witness, his
wife Kim, are legally insufficient. More
particularly, he argues that his words and actions evidence he did not violate
the statute. We do not agree.
As outlined
more fully above, an appellate court’s task in assessing a claim for
sufficiency of the evidence is limited.
The court reviews the record in the light most favorable to the judgment
to determine whether it contains substantial evidence and gives deference to
factual findings made by the trier of fact.
(People v. Rodriguez,
Section
136.1, subdivision (a)(2) provides:
“(a)
Except as provided in subdivision (c), any person who does any of the following
is guilty of a public offense and shall be punished by imprisonment in a county
jail for not more than one year or in the state prison: [¶] … [¶]
“(2)
Knowingly and maliciously attempts to prevent or dissuade any witness or victim
from attending or giving testimony at any trial, proceeding, or inquiry
authorized by law.â€
Section 136.1 punishes a defendant’s “efforts to prevent a
victim or witness from appearing in court and giving testimony.†(People
v. Fernandez (2003) 106 Cal.App.4th 943, 948.) It “requires proof that the defendant
specifically intended to dissuade a witness from testifying.†(People
v. Young (2005) 34 Cal.4th 1149, 1210.)
“‘There is, of course, no talismanic requirement that a defendant must
say “Don’t testify†or words tantamount thereto, in order to’†violate section
136.1. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344.) As long as a defendant’s words and actions
support the reasonable inference that he or she attempted to induce a person to
withhold testimony, a conviction of dissuading a witness is proper. (Ibid.;
see also People v. Young,
of witness dissuasion found in “the combination of defendant’s actions and
wordsâ€].) And “[t]he intent with which a
person acts is rarely susceptible of direct proof and usually must be inferred
from facts and circumstances surrounding the offense. [Citations.]â€
(People v. Massie (2006) 142
Cal.App.4th 365, 371.)
The
evidence pertaining to appellant’s convictions in counts 8 through 12 consisted
of recordings made of six
Kim, and others, while he was incarcerated in the Kings County jail. Appellant interprets his words heard in these
telephone calls as “giving advice on how to follow through with a course of
action [Kim] had already decided to take as she did not appear in court,†and
that he was “merely telling [Kim] if she did not want to testify, she would
have to go somewhere beyond the reach of a court subpoena.†In examining the entire record, we have
listened to the recordings that were played for the jury and we conclude the
record contains substantial evidence from which a rational fact finder could
reasonably determine that appellant knowingly and maliciously dissuaded Kim
from testifying.
By way of
example, in a call recorded December 18, 2008, appellant is heard telling
Kim that if she does not show up to testify, the government would have no case
and no reason to enter appellant’s residence.
In that same call, he tells her to “miss that subpoena†and that even if
she were served, she could plead “the 5th I love my husband [it’s] not true,
he’s not guilty.†On December 19,
2008, he tells Kim: “but anyway the big
thing is you can’t show up,†and “They’re going to subpoena you they need you
without you they don’t have shit.â€
In a third
call, made December 22, 2008, appellant tells Kim “[y]ou do not answer the
door, you stay away from there. This is
where we’re fucked man†and “if they subpoena I’m going to get fucked okay [¶] … [¶] … so you need to avoid
that at all costs.†He tells Kim that
she may “have to take flight,†and “you will come visit me and we will discuss
the Priscilla deal.†Later, appellant
asked Kim, “[W]hat did you tell the officers?
Did they take pictures of you?â€
Then, after Kim advises appellant she told the truth, he said, “That’s
it you fucked up I’m through unless you’re going to sit there in court and say
this chick Priscilla come to the door, she bombed on you ran over there next
door to Gina.†Appellant plainly lays
out the story regarding Priscilla to Kim:
“At that point just say this Priscilla chick came knocked on the door,
said your old man, woo, woo, woo and bombed on you,†“So you were assuming that
I was having an affair with her you start arguing with me this bitch bombed on
you. See what I’m saying,†“So I never
laid a hand on you, this bitch Priscilla did that’s the bottom line if they
subpoena you,†and “The only thing you can do is say no he didn’t hit me.†Further discussion is had during the
December 22d call about how Kim should avoid service of process.
In the
December 23, 2008, recording, appellant asks Kim about going to
Salinas. On December 24th, Kim
tells appellant she is not planning to leave or move and he replies, “Why
they’re going to serve you, they’re going to get a hold of you [¶] … [¶] … you got to stay PC’d up
and not go out nowhere.†Later during
the call, appellant speaks with one of his sons and directs him to help Kim
“because they’re going to try and serve her papers and she doesn’t want to be
served no papers okay because it will hurt me.â€
He further advises his son that if any law enforcement officer asks
about Kim, his son should tell the officer that Kim went to Salinas. Speaking with Kim again, appellant tells her
“the minute you get subpoenaed it don’t matter if you leave or not I’m fucked,
I’m fucked, pretty well fucked.â€
On
December 26, 2008, appellant advised Kim he was concerned with her safety
because with her “out of the picture they can use anything you said and make up
anything that you didn’t say against me and they got pictures already.†He wanted Kim to meet with him at the jail
“to go over our game plan,†and indicated if the case were to go to trial “me
and you will have several visits and get this shit together ….†During this conversation, Kim handed the
phone over to appellant’s mother.
Appellant told his mother that “Kim is the biggest key if she won’t help
them they got nothing.†Speaking once
again with Kim, appellant stated, “You’re the one that’s going to help me. You’re it, you’re the one I can’t let get
away, you understand because you are on my side,†and “The bottom line is I did
not touch you. [¶] … [¶] You got to
stick to that and you got to tell them about Priscilla.†Later, appellant stated “And I need you very
much by my side on this. I may go to
superior court with people, you may have to take the stand and tell what I said. You
may have to say what’s been said.â€
(Italics added.)
Appellant’s
words and actions support the reasonable inference that he attempted to induce
Kim to withhold her testimony. We are
not persuaded by his assertions that his words and conduct are merely advisory
and responsive to her decision not to testify.
For the foregoing reasons, we reject appellant’s challenge to the
sufficiency of this evidence.
IV. The Trial Court Properly
Sentenced Appellant to Consecutive Sentences in Counts 9 through 12
Appellant
maintains section 654 barred imposition of consecutive eight-month terms on
counts 9 through 12. Respondent argues
the consecutive terms imposed on counts 9 through 11 were proper, but concedes
the sentence imposed in count 12 should be stayed. We find the sentence imposed by the trial
court was proper.
Section
654, subdivision (a) provides as follows:
“An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision. An acquittal or conviction and sentence under
any one bars a prosecution of the same act or omission under any other.â€
The statute “precludes multiple punishment for a single act
or omission, or an indivisible course of conduct. [Citations.]â€
(People v. Deloza (1998) 18
Cal.4th 585, 591.) If a defendant is
convicted under two statutes for one act or indivisible course of conduct,
section 654 requires that the sentence for one conviction be imposed, and the
other imposed and then stayed. (
punishment, including either concurrent or consecutive sentences. [Citation.]â€
(Id. at p. 592.) The correct procedure is to impose a sentence
for each count and enhancement and then to stay execution of sentence as
necessary to comply with section 654. (
795-796.) The statute serves the purpose
of preventing punishment that is not commensurate with a defendant’s criminal
liability. (People v. Hall (2000) 83 Cal.App.4th 1084, 1088.)
“Whether a
course of criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses
were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.â€
(Neal v. State of California
(1960) 55 Cal.2d 11, 19; see People v.
Hairston (2009) 174 Cal.App.4th 231, 240.)
“If [a defendant] entertained multiple criminal
objectives which were independent of and not merely incidental to each other,
he may be punished for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts of an
otherwise indivisible course of conduct.â€
(People v. Beamon (1973) 8 Cal.3d
625, 639; see also People v. Britt
(2004) 32 Cal.4th 944, 951-952.)
The
language of section 136.1 focuses on an unlawful goal or effect, the prevention
of testimony, rather than on any particular action taken to produce that
end. “Prevent†and “dissuade†denote
conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative
outcome of any number of acts, any one of which alone might not be criminal. (People
v. Salvato (1991) 234 Cal.App.3d 872, 883.)
Here,
appellant maintains that the telephone calls made between December 18 and
December 26—despite being made on five different occasions—constitute one
indivisible intent to dissuade Kim from testifying.
Defense
counsel did not address the issue during his presentation to the trial court
before it imposed its sentence.
Thereafter, the trial court stated:
“Counts 8 through 12 are all for violations of … Section 136.1(a)(2). The Court will impose a consecutive sentence
of one-third the midterm for each count.â€
By ordering consecutive terms and failing to stay any term, the court
impliedly found that appellant had a separate intent and objective for each
offense pertaining to counts 8 through 12.
A review of
the calls made by appellant from the jail to his wife at home reveals there is
sufficient evidence of separate intents and objectives for the offenses
committed in counts 8 through 12. In the
first call, appellant tells Kim that without her testimony the government would
have no case and thus she should “miss that subpoena†and avoid service. The following day, appellant tells Kim not to
show up in court because without a subpoena the government cannot force her
testimony. In the third call, appellant
tells Kim that she needs to avoid service of a subpoena at all costs, she may
“have to take flight,†and that she needs to visit him in jail so that they can
“discuss the Priscilla deal.†In the
fourth call, made December 23, 2008, appellant says, “Listen they’re going
to be going like to Salinas right?†On
December 24, 2008, further discussion occurs regarding Kim’s need to avoid
being served with a subpoena and the fact that, if asked, law enforcement
should be advised that Kim went to Salinas.
In a final call, made December 26, 2008, appellant advises Kim that
she needs to visit him at the jail so that the two can discuss the “game planâ€
or Priscilla story and that if the case were to go to trial, they would need to
meet several times to get their “shit together.†He tells Kim she may have to testify about
“what’s been said.â€
In sum, we
find appellant intended the following objectives: (1) to dissuade Kim from testifying in court;
(2) to convince Kim to avoid service of a subpoena that would require her
testimony; (3) to persuade Kim to leave the area and go to Salinas; and (4) to
dissuade Kim from testifying truthfully about what occurred between them on
December 11, 2008.
Even if we
assume for the sake of argument that appellant’s phone calls to Kim from jail
were made with a “single generalized intent and objective …, separate
sentencing was still permissible.†(
919, 935.) As the Gaio court explained, “[u]nder section 654, ‘a course of conduct
divisible in time, although directed to one objective, may give rise to
multiple violations and punishment.
[Citations.]’ [Citations.] This is particularly so where the offenses
are temporally separated in such a way as to afford the defendant opportunity
to reflect and to renew his or her intent before committing the next one,
thereby aggravating the violation of public security or policy already
undertaken. [Citation.]†(People
v. Gaio, supra, at p. 935.)
Appellant’s
numerous calls were divisible in time and temporally separated, permitting him
the opportunity to “reflect and to renew†his intent before making the next
telephone call. The calls were not
incidental to one another, but completely independent. To the extent respondent contends the phone
call relating to count 12 should be stayed as it involved the same objective as
that in count 9, we do not agree. As
explained in People v. Gaio, even
where the objective is the same, because the conduct is divisible in time,
multiple violations and punishment are permissible.
The
sentence imposed here is proper.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
WISEMAN, Acting P.J.
________________________________
KANE, J.
name="_ftn1" title="">[1]Unless
otherwise indicated, all further statutory references are to the Penal Code.
name="_ftn2" title="">[2]Appellant’s
wife will be referred to by her first name only. No disrespect is intended.
