(Super. Ct. Nos. CRF09-3596, CRF05-7299)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jesse Leonardo Garcia, Jr., was convicted in case No. CRF09-3596 of criminal threats (Pen. Code, § 422--count 1),*fn1 two counts of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)--counts 2 and 3), misdemeanor domestic battery (§ 243, subd. (e)(1)--count 4), and misdemeanor child endangerment (§ 273a, subd. (b)--count 6). The trial court found defendant violated his probation in case No. CRF05-7299. Sentencing defendant in both cases, the trial court imposed a seven year eight month state prison term.
On appeal, defendant contends: (1) there is insufficient evidence to sustain the dissuading conviction in count 3; (2) prosecution for count 3 was precluded by a more specific penal statute; (3) punishing dissuading a witness more severely than violations of section 137, subdivision (c) violated his rights to due process and equal protection of the law; (4) ineffective assistance of counsel; and (5) there is insufficient evidence to support the child endangerment conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2009, Raquel I. was defendant's girlfriend. They lived together with her four-and-one-half-year-old son in defendant's mother's West Sacramento home. On July 30, at approximately 11:20 p.m., Raquel I. went to the local fire station to report that her boyfriend assaulted her. Fire personnel called the West Sacramento Police Department, which sent officers to interview Raquel I.
According to one of the interviewing officers, Raquel I. was barefoot, crying and trembling when she met them. She was very upset and kept looking around. Raquel I. said her boyfriend, defendant, struck her twice in the face during an argument.
Raquel I. told the officer defendant had agreed to drive her and their son to her mother's house in Elk Grove that day. While they were on the freeway, defendant told Raquel I. he would kill her if she ever lied to him again. Defendant then ordered Raquel I. to get out of the car while they were still on the freeway. Raquel I. got out of the car, and defendant drove off with their son. He then pulled over and let Raquel I. enter the car.
As defendant drove back to his mother's home, he continued arguing with Raquel I., striking her two times on the left side of her face. When they got home, Raquel I. asked defendant's brother to drive her to Elk Grove, but defendant told him not to take her anywhere. Defendant took Raquel I.'s cell phone and threatened to beat her if she called the police. He told Raquel I. that he was going to take the rims and stereo from her car, and she would report it to the police as stolen after he dumped it. Afraid for her life, Raquel I. grabbed a knife from the kitchen and hid it in her purse before taking her son and leaving the home.
Raquel I. stopped crying by the end of the conversation at the fire station, but was still trembling and scared. She told the officers this was not the first time defendant assaulted her. She agreed to have an emergency protective order, and asked to include her son and mother in the order.
Raquel I.'s car was found close to the home; all but one lug nut was removed from each wheel, and the stereo and amplifiers had been removed. Defendant was there, and Raquel I. identified him at a showup.
At trial, Raquel I. testified that she and defendant were at his mother's home on July 30, 2009, when he learned Raquel I. had loaned money to one of her friends without telling him. The ensuing argument moved to other matters, and Raquel I. told defendant she would be staying at her mother's house that night.
Defendant agreed, and they got in the car. Defendant was the driver, Raquel I. sat in the front passenger seat, and their son rode in the back seat. According to Raquel I., they continued to argue and she hit defendant in the face two or three times. Defendant then tried to swat her with an open hand, accidentally hitting her in the face. Defendant, upset that she hit him, yelled at Raquel I. to stop. She hit defendant two more times, and he turned the car around and went back to his mother's house.
When they returned home, defendant told Raquel I. they were done and he was going to take back the stereo and rims he had added to her car. As defendant reiterated he was done and started removing the radio, Raquel I. tried to convince him not to break up with her. Raquel I. then decided she was going to walk out with her son, so she took a kitchen knife for protection. She eventually walked to the fire station, where she made up a story about defendant assaulting her.
Raquel I. testified that she lied to the officers about defendant hitting her. She also lied about him telling her not to call the police and threatening to pull over on the freeway and beat her. Raquel I. testified she never got out of the car on the freeway and she lied about defendant threatening to beat her if she talked to the police.
Raquel I. said she made up the story about defendant because she was mad at him and wanted to get her car back. She denied telling the officers that defendant started to drive away from her on the freeway, that defendant threatened to strip her car if she left, or that she was afraid of defendant and afraid for her life. She also denied telling the officers this was not the first time defendant assaulted her.
Raquel I. admitted writing a letter to the district attorney after defendant's arrest. The notarized letter stated she lied about the assault, and defendant was just taking his belongings out of her car. Defendant asked her to write the letter and get it notarized, but Raquel I. asserted it was her idea to actually write it.
Defendant made numerous telephone calls to Raquel I. from jail, which were recorded by the jail authorities. The recordings were played at trial and the jury received transcripts.
During a call on August 2, 2009, defendant asked Raquel I. to write a notarized letter stating he did not steal her car, and she lied because she was mad at defendant and wanted him to go to jail. On August 3, defendant told Raquel I. to make sure her letter said that she told the police not to press charges against him, but the police told her they were going to nail him. He instructed Raquel I. to write ...