APPEAL from a judgment of the Superior Court for Los Angeles County, Mark C. Kim, Judge. Reversed in part, affirmed in part, and remanded for resentencing. (Los Angeles County Super. Ct. No. NA082410)
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PUBLICATION
The victim in this case, in which defendant Jonathan Velazquez was charged with three counts of criminal threats (Pen. Code,*fn1 § 422) and three counts of dissuading a witness (§ 136.1, subd. (b)(2)) for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(B), (b)(4)), failed to appear to testify during the prosecution's case-in-chief. Although there was a witness to the first instance in which defendant threatened the victim and attempted to dissuade her from assisting in the prosecution of his fellow gang members, and that witness testified in the prosecution's case-in-chief, there was no witness to testify as to the other instances until the victim (who was not under subpoena) came forward to testify in rebuttal -- after the trial court denied defendant's motion for acquittal on the counts related to those instances. Defendant was convicted on all counts and appeals on the ground (among others) that the trial court erred by denying his motion for acquittal. Because there was insufficient evidence at the time of defendant's motion to support the charges related to those other incidents, we are compelled under Supreme Court precedent to conclude that the trial court erred by denying defendant's motion for acquittal and that the judgment as to those counts must be reversed. In addition, as defendant contends and the Attorney General concedes, the trial court erred in imposing a 10-year gang enhancement rather than a 5-year enhancement, and failed to properly calculate defendant's presentence custody and conduct credits. Therefore, we remand the matter for resentencing.
Defendant was charged by information with three counts of criminal threats (§ 422) and three counts of dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2)); the victim in each count was Debbie Porter.*fn2 Counts 1 and 2 involved an incident that took place on March 3, 2009; counts 3 and 4 involved an incident on March 9, 2009; and counts 5 and 6 involved an incident on March 10, 2009. The information also included gang allegations under section 186.22, subdivision (b)(1)(B), as to the criminal threats offenses (counts 1, 3, and 5), and gang allegations under section 186.22, subdivision (b)(4) as to the dissuading a witness offenses (counts 2, 4, and 6), as well as a prior prison term allegation under section 667.5, subdivision (b), as to all counts.
The case was tried before a jury. Jury selection took up the entire first day of trial. The following day, both sides made opening statements and the prosecution presented three witnesses: the police detective who was a witness to the first incident and investigated the other incidents, the police officer who arrested defendant, and a police officer who testified as an expert on gangs.
Detective Boris Oliva testified that he was asked to assist another detective in an investigation involving criminal threats against Porter made by Sonia Rojas, a member of the Rancho San Pedro gang. He explained that two other members of that gang, Rommel Lennigan and Michael Sambrano, had been arrested on March 1, 2009 for putting a gun to Porter's head and for burglary. Porter came into the police station on March 3, nervous and "very shaken up," and reported threats made against her by Rojas.*fn3 During Detective Oliva's interview of Porter, Porter said that she was also being threatened by another Rancho San Pedro gang member known as Turtle. Porter identified Turtle from a photographic lineup; the person she identified was defendant.
While Porter was talking to Detective Oliva, she received a couple of phone calls and became very agitated. She told Detective Oliva that Turtle was calling her again, and showed him the phone number: 424-224-1502.*fn4 Porter did not answer those calls, and they went to voice mail. Detective Oliva asked Porter to access her voice mail. He listened to a message, which Porter said was from Turtle. He heard the caller say: "Call me. I have something important to talk to you about." Detective Oliva asked Porter to call Turtle back on speakerphone. When Porter called back, the detective heard the person who answered identify himself as Turtle. Turtle said that he had spoken to his homie that day (March 3), and that his homie had gone to an arraignment hearing and was looking at 27 years in prison. He told Porter to go to 77 jail (i.e., the 77th Street Division) and drop all the charges against his homie. He said that if she dropped the charges, nothing would happen to her. Porter appeared to be extremely worried during the call. Detective Oliva later determined that Sambrano and Lennigan were arraigned on March 3 on charges related to the March 1 incident with Porter.
Detective Oliva also testified about a follow-up visit with Porter he made on March 11, 12, or 13 at Porter's daughter's home, where Porter was staying because she was too scared to go back to her house. The prosecutor asked Detective Oliva, "[W]hen you met with [Porter] at her daughter's place, did she inform you as to any additional threats made to her by Turtle?" Detective Oliva answered, "Yes, sir, she did." But when Detective Oliva started to testify about what Porter told him, defense counsel objected on hearsay grounds and that objection was sustained. Detective Oliva then testified that Porter showed him her cell phone, and Detective Oliva observed several calls from the same number as the number Porter called in Detective Oliva's presence on March 3 in response to Turtle's voice mail. Detective Oliva observed there were at least two calls on March 9 and at least three calls on March 10. Detective Oliva said that, during his visit, Porter "was a wreck essentially" and was still very scared. He said he told Porter that he would relocate her if she wanted him to, but she found an apartment on her own outside of San Pedro.
Police Officer Robert Castruita testified after Detective Oliva, about the circumstances of defendant's arrest. His testimony was followed by Officer Andrew Gonzalez, who testified as an expert on criminal street gangs and specifically the Rancho San Pedro gang. Officer Gonzalez testified that defendant was a member of the Rancho San Pedro gang, and that the primary activities of the gang included witness intimidation and criminal threats. The prosecutor set forth a hypothetical scenario based upon the facts of this case, and asked Officer Gonzalez whether, in his opinion, the threats and intimidation were for the benefit of, in association with, or at the direction of the Rancho San Pedro gang. Officer Gonzalez opined that they were.
Officer Gonzalez finished his testimony at 2:45 p.m., at which time the court and counsel held a discussion off the record. Following that discussion, the proceedings were continued to the following morning. The next morning, which was a Friday, the prosecutor told the court that, despite Detective Oliva's best efforts, he could not locate Porter. He submitted a motion under Evidence Code sections 240 and 1290, asking for hearing to show reasonable due diligence in attempting to procure Porter's attendance, in order to have Porter declared to be unavailable as a witness and allow her testimony at the preliminary hearing to be admitted. The court granted the hearing, at which Detective Oliva testified.
Detective Oliva testified that Porter was at the courthouse, in the District Attorney's office, during jury selection. She received a phone call in mid-afternoon, and told Detective Oliva that she was just informed that her "Dad" had passed away.*fn5 She was very distraught, and asked to be excused so she could be with her family. Another assistant district attorney (not the prosecutor, who was conducting voir dire) went into the courtroom while Porter and Detective Oliva stayed in the hallway. When that assistant district attorney came back out, she told Porter she would be excused, but asked her to come back at 8:30 the next morning. Porter agreed. When she did not appear the next morning, Detective Oliva directed two detectives to try to locate her at the addresses he had for her. The detectives made several attempts to find her, but she was not at any of those addresses. Detective Oliva also tried to contact Porter on her cell phone numerous times, but could not reach her. He was able to contact Porter's parents, her son, and one of her daughters. They told him that when Porter is very depressed, as she was at that time, she becomes almost a recluse; they said that they had tried to contact her but were unsuccessful. Detective Oliva testified that, up to the time of the hearing, he and his colleagues continued to make additional efforts to find Porter, including going to the apartment of the gentleman who passed away, but they still were unable to locate her.
Based on Detective Oliva's testimony, the prosecutor asked that Porter be deemed unavailable, or alternatively, that the court grant a continuance. The court said it would not consider a continuance, because the prosecutor had represented that he had no idea where Porter was, and he could not say how long it would take to find her. Turning to the issue whether Porter was unavailable, the court asked whether Porter was ever under subpoena or ordered by the court to appear. The prosecutor admitted that she was not. Based on that admission, the court found that, under Evidence Code section 240, subdivision (b), she could not be deemed to be unavailable as a witness.
After making its ruling, the court asked, outside the presence of the jury, if the prosecutor had any other witnesses. The prosecutor indicated that he did not, and that the People would rest.*fn6 The court then asked defense counsel if he was going to call any witnesses. Although counsel said he was not, defendant said he wanted to testify. The jury returned to the courtroom, and the court asked the prosecutor, "People rest?" to which the prosecutor replied, "I believe the court has deemed that the People have rested, Your Honor." The court asked the ...