Trial Court: San Benito County Superior Court Superior Court No. CR-09-01321 Trial Judge: Hon. Steven R. Sanders
The opinion of the court was delivered by: Lucero, J.*fn15
CERTIFIED FOR PUBLICATION
(San Benito County Super. Ct. No. CR-09-01321)
In this case a jury found that defendant Simon Lawrence Torres was guilty of attempting to dissuade a victim or witness from reporting to law enforcement four other alleged crimes that the jurors were not persuaded had occurred. A judge who did not preside at the trial imposed a sentence for a greater offense than was submitted to the jury, which included both a three-year enhancement that the prosecutor had once asked to dismiss and an inapplicable custody credit restriction. The Attorney General acknowledges that defendant deserves relief from this agglomeration of errors.
After trial, a jury convicted defendant of "a violation of Penal Code Section 136.1, Dissuading a Witness from testifying, as charged in Count II."*fn1 They were unable to reach a verdict on four other charges, namely robbery (§ 211; count 1), burglary (§ 459; count 3), possession by a felon of a silver revolver (§ 12021, subd. (a)(1); count 4), and possession by a felon of a shotgun (count 5). These charges were ultimately dismissed on a motion of the prosecutor.
In bifurcated proceedings, the trial court found that defendant has three prior felony convictions, two leading to a prior prison term (§ 667.5, subd. (b)) and one burglary conviction that qualified as a prior strike (§ 667, subds. (b)-(i)) and a violent felony (§ 667.5, subd. (a)). At sentencing, the trial court sentenced defendant to 12 years in prison, consisting of the upper term of four years for violating section 136.1, subdivision (c)(1) doubled due to defendant's prior strike and a total of four years of enhancements for prior prison terms, one year under section 667.5, subdivision (b) and three years under section 667.5, subdivision (a). The court awarded 340 days of credits, including 296 days of actual credits and 44 days of conduct credits as restricted by section 2933.1.
Reversal is necessary, as defendant correctly points out that he has been convicted and punished for violating section 136.1, subdivision (c)(1), without any finding by the jury or the trial court that the witness dissuasion was accompanied by force or a threat of force or violence. He has also been subjected to a three-year enhancement and a conduct credit limitation when there is no evidence that the witness dissuasion qualifies as a violent felony.
David Campos was the alleged victim and the only eyewitness to all the charged offenses. Defendant did not testify at trial. We will summarize the testimony of Campos, while recognizing that the jury did not accept most of it.
According to Campos, he had met defendant through his cousin and they had socialized 20 to 25 times. The afternoon of May 6, 2009, Campos was home with his two young children when a silver Impala drove by his residence and returned to it. There was a knock on the front door. Campos opened the door to defendant. Campos turned to enter the living room. Defendant said he was sorry he had to "do this." Campos turned to see that defendant had a pistol in his hand at his side.
Defendant said, "I need the shotgun; I have to do something." There was a shotgun mounted on the wall of the bedroom occupied by Campos's brother-in-law. They both walked into the bedroom. Defendant said he wanted to borrow the shotgun. Campos told him no because it was not his to give. Defendant took it anyway.
Defendant also asked Campos separately for his cell phone and its battery, saying he would return each item later. Campos refused twice.
Defendant asked him to lie down in the bathroom or the bedroom. Campos refused because his young children were unattended. Defendant got irritated and took out the pistol, which he had put in his pocket, and raised it in Campos's direction.
Defendant let someone else into the house. Campos never got a good look at the other person because defendant blocked his view. Before defendant left, he told Campos that if he called the police, something bad would happen to him. When they left, Campos noticed his 42 inch flat screen television was missing. He did not see who had carried it away. Campos called the police that evening.
Campos, his girlfriend, Amanda Webb, and her brother, Patrick, each received telephone calls from defendant offering to return the television if the charges were dropped. On the morning of his testimony, Campos received two phone messages from the county jail where defendant was housed. One told him to turn off his phone so he would lose track of time. The other said that if he did not drop the charges, something bad would happen to his family.
On the witness dissuasion charge, the prosecutor argued to the jury that the attempted dissuasion occurred before defendant left Campos's residence, when defendant said, "you better not say anything or it's going to get worse, something bad is going [to] happen." "The defendant started getting a little more agitated, even a little more force and fear, [waved] that gun around to dissuade, prevent, discourage any report being made." The prosecutor further argued that the evidence of later threats and attempts to discourage testimony showed that defendant knew he was guilty of the crimes.*fn2 As we will explain in the next section (part 4C), there was no argument that the witness dissuasion was accompanied by force or a threat of force, because that issue was bifurcated.
4. Pleading and proof of witness dissuasion
On appeal defendant contends that he has been sentenced for a crime that was neither pleaded nor proved to the jury. To better understand these contentions, we will review the proceedings applicable to the charge of witness dissuasion after examining the underlying statutory framework.
A. The applicable statutes
As we understand it, section 136.1 defines a family of 20 related offenses.*fn3 There are five underlying offenses that are wobblers alternately punishable as misdemeanors or felonies.
Subdivision (a)(1) proscribes knowingly and maliciously preventing or dissuading any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law, and subdivision (a)(2) proscribes attempting to do so.*fn4
Subdivision (b) proscribes three other wobblers with the common element of attempting to prevent or dissuade a crime victim or witness from doing any of the following: reporting the victimization to anyone in law enforcement, including a law enforcement officer, a peace officer, probation, parole, or correctional officer, a prosecuting agency, or a judge (subd. (b)(1)); causing a complaint, indictment, information, probation or parole violation to be prosecuted and assisting in the prosecution (subd. (b)(2)); or seeking or causing the arrest or arresting a person in connection with "that victimization" (subd. (b)(3)). Unlike the subdivision (a) offenses, the subdivision (b) offenses do not expressly include the mental element of knowingly and maliciously. The sentence range for these wobblers as felonies is not otherwise specified, so it is 16 months, two or three years. (§ 18.)
Under any one of four sets of circumstances specified in section 136.1, subdivision (c), each of the wobblers becomes a straight felony when it is committed knowingly and maliciously. These greater offenses are subject to a higher range of punishment, namely two, three, or four years in prison. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1321 [§ 136.1, subd. (b)(1) is a lesser offense of § 136.1, subd. (c)(3)]; People v. Brenner (1992) 5 Cal.App.4th 335, 341 [§ 136.1, subd. (b)(1) is a lesser offense of § 136.1, subd. (c)(1)].) One specified circumstance is when the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. (Subd. (c)(1).) The other three circumstances (described ante in fn. 3) are not relevant to this appeal. Since there are five underlying crimes which become greater offenses when they involve any of four sets of circumstances, section 136.1 describes a total of 20 related offenses.
Defendant asserts that he was deprived of due process in that "the prosecution did not allege the factual circumstances necessary for a violation of" subdivision (c)(1), namely the existence of force or a threat of force or violence. As will appear, defendant correctly observes that he was never expressly alleged to have employed force or a threat of force in dissuading a witness or victim.
The allegations against defendant were stated in an original complaint filed July 6, 2009, a first amended complaint filed on October 2, 2009, and a second amended complaint filed on January 11, 2010. On October 7, 2009, the first amended complaint was deemed an information and defendant waived his right to a preliminary examination, conceding that there was probable cause to believe he committed the offenses alleged in the complaint. Each of the complaints alleged all five crimes described in the introduction above, namely robbery ...