IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 22, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANIEL GROZAV, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F04829)
The opinion of the court was delivered by: Blease, J.
P. v. Grozav
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 doing, but I -- whatever I'd be able to pay people -- pay Cassie, whatever that loss of payments. You know what I'm saying?"
When Crissan explained that T.B. took her purse as well as Cassie's purse, and that T.B. had hit both women, defendant said he did not want T.B. to do "big time in jail" or prison. He then offered Crissan $500.
Crissan then explained she had received a call from "Vanessa," and defendant said he thought that might be his "cousin's wife or something." Crissan said Vanessa had called, stating "she was willing to pay, um, if we dropped the charges." Crissan asked what she should "say to the Court about the whole thing?"
Defendant said: "Oh. You and -- and, ah, Cassie, (Unintelligible), you don't need to come to the Court. You just maybe -- you just write a letter saying it was just arguments and you and TB go to your home, arguments and stuff, but, ah, you replace social security or something, just don't -- if they ask you, but you replace those? yeah I replace those because I lost the purse. And I thought TB take it from us. But later on I find out it -- it was not the one taken. We just lost the purse. If you -- if you gonna say that and write a letter, ah, you don't have to press charges or coming, then it was just argue -- argument with you guys and it was nothing wrong -- I mean no more than that, you know what I'm saying?"
When Crissan asked what if she had to go to court, defendant said in part "even if you gonna come to the court . . . . you can say . . . the thing I told you right now. I don't wanna -- we don't wanna press charge (Unintelligible) 'cause we -- we, ah, just miscommunication from argue. We have some argue, and we issue and stuff. But we found out it was not -- it was not him doing, ah, purse and stuff."
Crissan later asked what would happen if "we don't take up on your offer," and defendant said in part "I'm not that type of people coming right after you. . . . I'm not go find people and do some bad things to them, no."
Crissan said she would think about it, and defendant said, in part: "Please give me a call when you got chance and, please, if you -- and I really appreciate if you can understand the situation if you can, you know, not to press charges and evidence, whatever the loss or damage, like, I say, I could pay you back."
Based on the above evidence, the jury convicted defendant as charged, finding he attempted to dissuade Cassie from attending trial in a call made on May 30, 2008, attempted to dissuade Crissan from attending trial in the call made on June 2, 2008, and attempted to influence both women's testimony on June 2, 2008. The trial court imposed a midterm two-year prison sentence on count 1 (Pen. Code, § 138, subd. (a), as to Cassie) and a consecutive one-third midterm sentence of eight months on count 2 (Pen. Code, § 138, subd. (a), as to Crissan). The court stayed imposition of sentence on counts 3 and 4 (Pen. Code, § 137, subd. (a), as to Cassie and Crissan). The court suspended execution of sentence and placed defendant on probation. The trial court later issued a modification, but still did not impose any sentence on counts 3 and 4. Defendant timely filed this appeal.
I. Sufficiency of the Evidence
Defendant concedes the evidence supports two convictions of attempting to influence a witness (Pen. Code, § 137, subd. (a)), but contends no substantial evidence supports two convictions of attempting to dissuade a witness to attend court (Pen. Code, § 138, subd. (a)). We disagree with this contention.
"We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
Penal Code section 138, subdivision (a), provides: "Every person who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that the person shall not attend upon any trial or other judicial proceeding, or every person who attempts by means of any offer of a bribe to dissuade any person from attending upon any trial or other judicial proceeding, is guilty of a felony."
We have held that merely offering a witness money to "drop the case" does not equate to offering money not to attend trial. (Lichens v. Superior Court (1960) 181 Cal.App.2d 573, 576 [construing predecessor statute, Pen. Code, § 136½] (Lichens).) But the intent to dissuade a witness not to attend trial may be inferred from the language used and its context. (People v. Pic'l (1982) 31 Cal.3d 731, 740-742 [promise to seek dismissal of charges and do "'everything within my power'" to prevent further charges, was sufficient to show intent not to attend trial] (Pic'l); 2 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Crimes Against Governmental Authority, § 39, pp. 1130-1131.)*fn1
A "meeting of the minds" is not necessary, and the offense is complete when a bribe is offered with the requisite intent, whether or not the other party means to accept the bribe. (Pic'l, supra, 31 Cal.3d at pp. 737-739; see People v. Gliksman (1978) 78 Cal.App.3d 343, 347-351.)
Defendant relies on two cases that, in his view, preclude his convictions for violating both Penal Code sections 137 and 138 as a matter of law. However, as we shall explain, in this case defendant made statements evidencing his intent to dissuade the witnesses from testifying and to dissuade them from testifying truthfully, therefore he violated both statutes.
People v. Fernandez (2003) 106 Cal.App.4th 943 (Fernandez), discussed a statute penalizing the attempt to dissuade a victim from making a "report" to various officials, including "any judge." (Pen. Code, § 136.1, subd. (b)(1).) Fernandez held that the word "report" as used in that statute did not encompass testimony, and Fernandez's conduct of attempting to influence a witness's testimony should instead have been charged under Penal Code section 137. (Id. at pp. 946-951.) "Here, an effort to influence the contents of a victim's or witness's preliminary hearing testimony is governed by section 137, and an effort to prevent a victim or witness from testifying entirely is governed by sections 136.1, subdivision (a) and 138, subdivision (a). Section 136.1, subdivision (b)(1) should not be construed to punish efforts to prevent or influence testimony when it does not do so expressly, and there are other statutes within the same scheme that cover such conduct." (Id. at pp. 949-950.) Fernandez partly explained that "The Legislature has taken pains to distinguish the various methods of influencing a witness and to establish a range of punishment for those offenses that reflects different levels of culpability." (Id. at p. 950.)
In People v. Womack (1995) 40 Cal.App.4th 926 (Womack), Womack was convicted of attempted murder and attempting to influence a witness. Womack garroted the victim while telling him he should have remained loyal. (Id. at pp. 928-929.) In reversing the witness-influencing count, the court stated in part: "Preventing or dissuading a witness from testifying altogether is incompatible with influencing or shaping the testimony the witness gives." (Id. at p. 931.) "Inasmuch as Penal Code section 137 cannot reasonably be interpreted as encompassing an intent to prevent or dissuade a witness from testifying, an intent to kill the witness is not coextensive with an intent to influence the testimony of that witness by inducing him or her to give false or withhold true testimony. Indeed, the two intents are mutually exclusive. One cannot influence, or shape, the testimony of a witness by preventing that witness from testifying." (Id. at pp. 931-932.) However, Womack noted, "To be sure, defendant could have harbored dual intents. He could have intended to kill [the witness] and, secondarily, intended to influence [the witness]'s testimony should the attempt to kill him fail. There is no evidence defendant harbored dual intents, however." (Id. at p. 933.)
Fernandez and Womack support defendant's premise that the Legislature has enacted several statutes designed to defend the integrity of the criminal justice system, and that a given defendant's conduct must be measured against the elements of the particular offense charged. But neither case holds or implies that it is improper to charge or convict a defendant under more than one such statute if the facts support violations of more than one statute. In particular, Womack acknowledged a defendant could have "dual intents" to prevent a witness from testifying and to influence the witness's testimony if the effort to prevent testimony failed. (Womack, supra, 40 Cal.App.4th at p. 933.) That is the case here.
Crissan testified that in the telephone call on May 30, 2008, when defendant thought he was speaking to Cassie, defendant "just said not to go to court." In the telephone call on June 2, 2008, defendant told Crissan "you don't need to come to the Court. You just maybe -- you just write a letter saying it was just arguments" and "if you gonna say that and write a letter, ah, you don't have to press charges or coming[.]" Also in the June 8th call, Crissan asked what if she had to go to court. And defendant answered: "[Y]ou can say . . . the thing I told you right now," namely "I thought TB take it [the purse] from us. But later on I find out it . . . was not the one taken." "We just loss the purse." (See pg. 5, infra.) In both calls, defendant offered money.
The jury could rationally infer that defendant offered money to dissuade both Cassie and Crissan from coming to court and to influence their testimony if they did go to court. That supports the convictions for attempting to dissuade Cassie from attending trial, based on the first call, and attempting to dissuade Crissan from attending trial, based on the second call.
Accordingly, we reject defendant's contention that no substantial evidence supports the two convictions under Penal Code section 138, subdivision (a).
II. Penal Code section 654
Generally, Penal Code section 654 proscribes multiple punishment when a defendant's actions incident to a single objective violate multiple statutes. (Pen. Code, § 654, subd. (a); see Neal v. State (1960) 55 Cal.2d 11, 18-20.) We review the trial court's findings--explicit or implicit--regarding a defendant's intent under the substantial evidence standard. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
The facts support the trial court's implied finding that, as to each witness, defendant bore a single objective, to prevent her from testifying truthfully against his son, either by giving false testimony or by not appearing at court, therefore he could be punished only once as to each witness. Although the trial court understood the substantive limitation provided by Penal Code section 654, the problem, as the Attorney General correctly explains, is that the trial court did not implement the limitation correctly.
The trial court imposed and suspended sentences on counts 1 and 2 (Pen. Code, § 138, subd. (a)), naming Cassie and Crissan as victims, respectively, but stayed imposition of sentence on counts 3 and 4 (Pen. Code § 137, subd. (a)), also naming Cassie and Crissan as victims, respectively. The trial court later issued a modification, but still did not impose any sentence on counts 3 and 4.
As we recently explained, in cases where Penal Code section 654 precludes multiple punishment, the trial court must first impose and then stay execution of sentence, a trial court is not authorized to stay imposition of sentence. (People v. Alford (2010) 180 Cal.App.4th 1463, 1467-1473 (Alford).)
Although the Attorney General suggests we could remand the matter to the trial court, he acknowledges we can also modify the judgment by imposing the missing sentences ourselves. Defendant did not express any preference on this point, as defendant did not file a reply brief.
As in Alford, we see no reason to remand for resentencing, but will instead exercise our power to modify the judgment. (Pen. Code, § 1260; Alford, supra, 180 Cal.App.4th at p. 1473.)
The trial court imposed midterm sentences on counts 1 and 2, reducing the sentence on count 2 by two-thirds because it was a consecutive subordinate term, pursuant to Penal Code section 1170.1, subdivision (a).*fn2 It is clear the trial court would have imposed midterm sentences on counts 3 and 4. Accordingly, we impose and stay a sentence of two years on count 3, the stay to become permanent on the completion of sentence or probationary period as to count 1, and impose and stay a consecutive sentence of eight months (one-third the midterm) on count 4, the stay to become permanent on the completion of sentence or probationary period as to count 2. (See People v. Duff (2010) 50 Cal.4th 787, 796.)
III. Custody Credits
The trial court imposed probation conditions including jail terms in this case, and also in a prior case in which probation had been granted. Defendant was given credit for seven days of actual custody but was not awarded conduct credits. No reason was given for not awarding conduct credit. The record does not show defendant refused work or behaved poorly in jail, or that that time was attributable to another case. Therefore, we conclude defendant is entitled to conduct credits. (Pen. Code, § 4019, subds. (b) & (c); see Couzens & Bigelow, California Criminal Sentencing (Barrister Press 2010), Concluding the Sentence, p. 120.)*fn3
Pursuant to our Miscellaneous Order No. 2010-002, we deem defendant to raise whether he is entitled to the benefit of the more generous credit formula recently adopted. We conclude he is. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendments lessening punishment for crime apply to acts committed before enactment, provided the judgment is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237.) Neither defendant's current convictions nor his criminal record disqualify him from the new formula. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Defendant, having served seven days of presentence custody, is entitled to six days of conduct credits. (Pen. Code, § 4019, subds. (b), (c) & (f); In re Marquez (2003) 30 Cal.4th 14, 25-26 [rounding up not permitted].) The judgment is modified to award defendant those credits.
A more recent amendment granting one-for-one conduct credits applies to defendants sentenced to state prison. (Pen. Code, § 2933, subd. (e), as amended by Stats. 2010, ch. 426, § 1.) Because defendant was granted probation, he is not eligible for this credit formula.
The judgment (order granting probation) is affirmed as modified by this opinion. The trial court is directed to prepare a new order of probation reflecting these modifications.
We concur: RAYE, P. J. MAURO, J.