(Super. Ct. No. 08F04829)
The opinion of the court was delivered by: Blease, J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Daniel Grozav of two counts of attempting to influence a witness's testimony (Pen. Code, § 137, subd. (a)) and two counts of attempting to dissuade a witness from attending court (id., § 138, subd. (a)). The trial court sentenced defendant to prison for two years and eight months, suspended that sentence, and placed defendant on formal probation. Defendant timely filed this appeal.
On appeal, defendant contends no substantial evidence supports the two counts charging attempts to dissuade witnesses from attending court (Pen. Code, § 138, subd. (a)). We reject this contention. However, the trial court made two sentencing errors. First, as the Attorney General points out, the trial court failed to impose any sentence on two counts. Second, the trial court did not award defendant any presentence conduct credits. We modify the judgment and affirm.
After the police arrested defendant's son Tiberio Grozav ("T.B." at trial) on charges he robbed two women, defendant offered the women money to change their story or not appear in court. Defendant was charged with four counts based on two telephone calls. Based on a call on May 30, 2008, he was charged with offering a bribe to dissuade Cassandra Carls ("Cassie" at trial) from attending court (Pen. Code, § 138, subd. (a)). Based on a call made on June 2, 2008, which was recorded by the police, defendant was charged with offering a bribe to dissuade Crissan Albursezze Clements ("Crissan" at trial) from attending court (Pen. Code, § 138, subd. (a)), and with offering both Cassie and Crissan bribes to influence their testimony (Pen. Code, § 137, subd. (a)).
Cassie testified that one day in April 2008, she was with her ex-boyfriend T.B., her friend Crissan, a female T.B. said was his cousin, and "some black guy." After an argument, Cassie and Crissan began to walk home, but T.B.'s purported cousin said that T.B. told her to fight Cassie, and then she attacked Cassie from behind. Cassie did not remember much more, because she lost consciousness, and when she woke up her purse was gone and Crissan was crying. Cassie went to the hospital with a minor concussion. Later, T.B. told her he took her purse, and she knew he had been arrested for robbing the women.
On May 30, 2008, after T.B.'s arrest, defendant called Cassie, but she passed the telephone to Crissan. Defendant apologized on behalf of his son, offered to pay for Cassie's "losses" and asked her to drop the charges, but he did not say she had to drop the charges, and Cassie denied recalling that she told the police anything different.
Cassie's story was partly impeached by evidence that after T.B. sent her a letter telling her to contact defendant, she told the prosecutor she wanted to drop the charges; further, she testified she did not want to be in court, she still had feelings for T.B., and until recently she had spent time with his family at a hookah bar every Thursday.
Crissan testified at trial, and admitted she had not shown up the day before, although she had been subpoenaed, and that she had not shown up at a scheduled meeting with the prosecutor and an investigator. Crissan testified that T.B. punched her and Cassie and took their purses. Several days after T.B. was arrested, defendant called her. Defendant spoke to Crissan, thinking she was Cassie: "He was just, basically, asking if we were okay, and he was asking who I was. And then he said that we shouldn't press any charges. . . . [H]e was asking us if there is anything he can do like moneywise for the stuff that [T.B.] took from us. He was just, basically, begging us not to press any charges." "He just said that he would pay, like, 'What do you guys need, like a hundred dollars. I'll give you that so you can drop the charges.'" Although she was not sure of the exact words, he "just said not to go to court."
Detective Jeff Wright testified he arrested T.B. on May 29, 2008, and after the arrest, Cassie called him to say that defendant had offered her money to drop the charges. He met with Cassie and Crissan on June 2, 2008, learned that Crissan had spoken to defendant, and arranged a "pretext" call to defendant. On appeal, the parties accept as accurate the informal transcript of that call used at trial, from which we now quote.
Crissan told defendant "Cassie had talked to me about dropping the charges" and shortly thereafter states T.B. "did that whole thing, 'cause he hit me too." Defendant replied: "Oh, okay. Is there anyway -- ah, yeah, 'cause I -- I - try to call her, Cassie and, um, ask her if she's paid to drop off the charge not to charge TB because I understand he took, take some stuff. But, um, everybody's make a mistake and I apologize. I have to apologize, what he's been ...