IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 20, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LUIS ALBERTO MARTINEZ, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 07F08730 & 05F00234)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Martinez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Luis Alberto Martinez was convicted of dissuading a witness from testifying (Pen. Code, § 136.1, subd. (c)(1)),*fn1 conspiracy to dissuade a witness from testifying (§ 182, subd. (a)(1)), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364) in case No. 07F08730. The trial court sentenced defendant to four years in prison, awarded 1,765 days of presentence credits, consisting of 883 days' custody and 882 days' conduct credit and imposed fines and fees. The trial court also imposed a consecutive eight-month term for violating probation in case No. 05F00234, with 180 days' sentenced time credit.
On appeal, defendant contends there is insufficient evidence to support his convictions for dissuading a witness and conspiracy to dissuade a witness, and he was entitled to a monetary credit against his fines and fees for the presentence credits in excess of his prison term. We shall affirm and remand for a hearing on the monetary credit for defendant's excess credits.
On August 29, 2007, Andres Borjas (Andres)*fn2 entered the Florin Service Center of the Sacramento Sheriff's Department, and gave a statement to Detective Cary Trzcinski relating details of a recent attempted robbery.
Andres was driving with his girlfriend near Bowling Green park when a black Nissan pulled out and blocked his car. Two people got out of the Nissan and approached. One of the men, Leonardo Ledesma, tried to take Andres's wallet; as the second man approached, Andres noticed that he had a gun in his waistband. Ledesma threatened to kill Andres, and said: "You will respect the Sur," a reference to the Sureno gang. Andres drove away on the sidewalk. Ledesma shot at him several times, hitting his Jeep Cherokee at least once.
Andres told Detective Trzcinski he was going to leave Sacramento for Mexico because Ledesma was picking on him. He also worried he would be killed if he talked to law enforcement. Andres gave law enforcement the home of his brother Fabian Borjas (Fabian) as his address. Detective Trzcinski later tried to contact Andres but never heard from or saw him again.
In September 2007, Fabian lived in a house on 47th Street in Sacramento, where Andres stayed at times. Andres told Fabian that a man shot at their Jeep Cherokee. Andres had several prior contacts with Ledesma and his associates. Defendant was one of Ledesma's associates, and once punched Andres for insulting the Surenos.
There was an incident at Fabian's home after he learned about the attack on Andres. Defendant and co-defendant Carlos Valladolid came together to Fabian's home and asked to talk to Andres. Fabian met them at the door; a car he did not see before was parked outside. Valladolid asked Fabian about Andres's location. Andres was in Sacramento, but Fabian said his brother was in Mexico. Fabian lied because he heard Andres was going to testify against Valladolid and Valladolid's cousin Ledesma.
Valladolid ordered Fabian to tell Andres not to testify. According to Fabian, Valladolid told him, "if I was lying to them, they were going to come see me and kill me." Defendant was about four feet away from Fabian and Valladolid. Apparently very angry, defendant pointed at Fabian and said "don't lie to me." This caused Fabian to be afraid for his and Andres's safety.
Fabian felt both defendant and Valladolid had threatened him. Defendant and Valladolid were clear that they represented the person who shot at Andres, and wanted Fabian to tell his brother not to testify. There was another person in the car whom Fabian could not identify.
Candice Valladolid (Candice) is Valladolid's wife. In October 2007, her husband was a member of the CST, a subset of the Surenos gang. Ledesma belonged to the same gang.
According to Candice, she went to Fabian's home with her husband on two occasions. The first time, Candice and her husband came in one car with defendant coming in his own car. No one was home and they left.
The second visit happened shortly after the abortive first visit. Ledesma's father wanted them to go over and talk to Fabian. Candice, Valladolid, and Ledesma's father came in one car, while defendant drove there in his own car. Defendant, Valladolid, and Ledesma's father went up and talked to Fabian while Candice stayed in the car. Candice heard nothing and did not know what they were talking about. The three men stood next to one another as they were talking to Fabian. The incident lasted about 10 to 15 minutes.
Detective Trzcinski contacted defendant, a known Sureno member, on the street one day. As Detective Trzcinski approached, defendant appeared to identify him as an officer, and walked toward a nearby truck, dropping a methamphetamine pipe from his pocket. Defendant admitted to previously hitting Andres for insulting the Surenos. Detective Trzcinski also contacted Valladolid, who told him that he went to Fabian's house because Ledesma is his cousin and was facing time over some incident.
Defendant attacks the evidentiary basis of his convictions for dissuading a witness (§ 136.1, subds. (a), (c)) and conspiracy to dissuade a witness (§ 182, subd. (a)(1)).
A person who knowingly and maliciously prevents or attempts to prevent a person from testifying through the "express or implied threat of force or violence," or "in furtherance of a conspiracy" is guilty of felony dissuading a witness. (§ 136.1, subds. (a), (c).) Defendant was convicted of dissuading a witness on and in furtherance of a conspiracy theory.
"The crime of conspiracy is defined in the Penal Code as 'two or more persons conspir[ing]' '[t]o commit any crime,' together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance thereof. [Citation.] 'Conspiracy is a "specific intent" crime. . . . The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.' [Citation.]" (People v. Swain (1996) 12 Cal.4th 593, 600, italics omitted.)
Defendant contends his convictions cannot stand because there was insufficient evidence of a conspiracy. We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314-315.)
In support of his contention, defendant relies on a recording of two phone conversations made by Ledesma in the county jail, both presented by the People. During the conversation, Ledesma repeatedly told his father that he needed him to tell "cousin Carlos [Valladolid]" to talk to "Andres," whom Valladolid would tell to drop the charges against Ledesma. Defendant points out that "Carlos" is mentioned throughout the conversation about stopping Andres from testifying, but there is no mention of defendant. In the second conversation, a call to Ledesma's mother and father, Ledesma mentions defendant once, as someone who could direct them to Andres's house.
Defendant asserts these conversations show he was no more than incidental to the conspiracy, someone who could get the conspirators to the house. In support of his claim, he cites Candice's testimony that defendant drove his own car to Fabian's house, which he characterizes is "a concrete manifestation of the fact that he was not a member of any conspiracy." From this, defendant concludes the evidence was insufficient to show he had the specific intent required for conviction for conspiring to dissuade Andres from testifying, or for conviction for dissuading a witness as an aider and abettor.
Andres told Detective Trzcinski that defendant was a known associate of Ledesma, and had struck Andres for insulting Ledesma's and defendant's gang. According to Fabian's testimony, defendant was with Valladolid when he inquired about Andres, told Fabian to tell Andres not to testify, and threatened to kill Fabian if he lied to him. Although defendant was three to four feet away from Valladolid and Fabian, he reinforced Valladolid's threat, telling Fabian "don't lie to me." Defendant's visible anger scared Fabian, making him afraid for himself and his brother.
A jury could reasonably infer from this evidence that defendant agreed to help Valladolid carry out Ledesma's instructions to dissuade Andres from testifying by delivering the threat to Andre's brother Fabian. The inference is further supported by Fabian's testimony that there was one car in front of his house, and defendant and Valladolid came together.
Defendant was not a bit player or innocent bystander to the conspiracy. His presence and statement to Fabian reinforced the threat intended to dissuade Andres from testifying. This constitutes substantial evidence supporting the jury's verdicts.
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (Sen. Bill No. 76), which amended sections 4019 and 2933. The amendment gives qualifying prisoners with presentence credit calculated at one day of presentence credit for every day of the prisoner's actual presentence confinement. (§ 2933, subds. (e)( 1), (e)(2), (e)(3); Stats. 2010, ch. 426, § 1, Sen. Bill No. 76.) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 when the person served an odd number of days in presentence custody, and it eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)
As defendant does not have present or prior convictions for a violent or serious felony and is not subject to registration as a sex offender, he is entitled to the additional accrual of credit. (§ 2933, subd. (e)(1); Stats. 2010, ch. 426, § 1; § 4019, former subds. (b)(2), (c)(2); Stats. 2009-10, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendant was given presentence credit of 883 actual days and 882 days of conduct credit under section 4019, as amended effective January 25, 2010. As a result of the new amendments in Sen. Bill No. 76, defendant, having served 883 days of actual presentence custody, is entitled to 883 days of conduct credit, for a total of 1,766 days' credit. (§ 2933, subd. (e)(1); Stats. 2010, ch. 426, § 1.)
Defendant contends, and the People concede, he is entitled to monetary credit against his fines for each day of presentence credit exceeding the four years he was ordered to serve in state prison. We accept the People's concession.
Section 2900.5, subdivision (a) provides in relevant part: "[W]hen the defendant has been in custody . . . all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, . . . at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. . . . In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines." (See People v. McGarry (2002) 96 Cal.App.4th 644, 646-647.)
Defendant was sentenced to a four-year prison term in case No. 07F08730 and earned 1,766 days' credit. Against the consecutive eight-month term in case No. 05F00234, the trial court awarded 180 days' "sentenced time." Since defendant's credits exceed his prior prison term, he is entitled to monetary credit against his fines for the excess time pursuant to section 2900.5, subdivision (a).
Defendant asks us to either set the daily rate for his excess credits and determine his monetary credit or remand the case for the trial court to make this determination. We shall remand the case to allow the trial court to exercise its discretion to set the daily credit and calculate defendant's total credit.
The award of credits is modified to award defendant 883 days of presentence conduct credit in case No. 07F08730. As modified, the judgment is affirmed, except that the case is remanded to the trial court with directions to: 1) calculate defendant's monetary credit for presentence credit in excess of his prison term; 2) apply the monetary credit against defendant's fines; 3) prepare an amended abstract of judgment in accordance with this opinion; and 4) to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , J. HOCH , J.