(Super. Ct. Nos. 07F08730 & 05F00234)
The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 ...