Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC591038, CC466717.
ELIA, J.
A jury found appellant Eric Adams guilty of four counts of making a criminal threat, two counts of attempting to dissuade a witness from testifying by threat of force, one count of unlawfully causing a fire to an inhabited structure, two counts of conspiracy to dissuade a witness from testifying, one count of misdemeanor battery and one count of misdemeanor brandishing a weapon. (Pen. Code, §§ 422, 136.1, 182, 452, 242, 417.) The same jury found appellant Jesse Adams guilty of one count of attempting to dissuade a witness from testifying by threat of force, one count of making a criminal threat, and one count of conspiracy to dissuade a witness from testifying. (Pen. Code, §§ 136.1, 422, 182.) The trial court sentenced Eric Adams to 24 years in state prison. The trial court sentenced Jesse Adams to a state prison term of 75 years to life with a consecutive determinate term of 30 years.
Appellants contend that the trial court erred in instructing the jury on the witness dissuasion charges. They contend that there was insufficient evidence that the victims of the criminal threats experienced sustained fear. Appellants contend that they received ineffective assistance of counsel because counsel did not object to the admission of taped jail phone conversations and dog sniffing evidence. Appellants contend that the trial court erred in admitting expert testimony concerning the meaning of slang terms. Eric Adams contends that the trial court erred in failing to instruct the jury that it must determine the number of conspiracies proved. Appellants contend that the trial court committed sentencing error. As to Eric Adams, we reverse for instructional error as to the two conspiracy counts. As to Jesse Adams, we modify the sentence and affirm the judgment.
Evidence at Trial
Counts 11 through 15, which charged Eric Adams with criminal threats, battery, and brandishing, arose out of events on August 23, 2004. Christopher Huber and Rolando Gonzalez were trimming trees at the home of Huber's brother-in-law Justin Perez and his family. The house was on a corner lot in San Jose. Huber was up in a tree and Gonzalez was gathering branches below.
A young woman ran up to Gonzalez screaming, "Help me. He's gonna kill me." A white car skidded to a stop and Eric Adams got out. The woman, Shante Adams, Eric's wife, was hysterical and her shirt was covered with blood. She got behind Gonzalez and held him in front of her as Eric tried to reach around him. Eric yelled, "Bitch, I'm gonna kill you. Get back in the car. You know you're gonna get these people hurt." Gonzalez testified that Shante was "embracing" him from behind as Eric pushed him by the shoulders and tried to grab Shante. Eric said, "Why are you protecting her? Do you want to fight?" Eric yelled, "I'm gonna kill you, bitch. You better not protect her. You're gonna – you're gonna get hurt protecting this worthless bitch."
Because appellants and Shante Adams all have the same last name, we will at times, for convenience and clarity, refer to them by their first names.
Huber started to lower himself from the tree. Eric said, "I'm gonna get you. You're gonna get hurt. You know, I see you, tree man. I'm gonna kill you, tree man." When Eric "gave up trying to get at the lady" through Gonzalez, he started to leave and said, "You ever heard of the Seven Trees?" Huber and Gonzalez understood this to be some kind of gang reference.
Eric left in the white car. Perez and his family tended to Shante's injury in their garage. A few minutes later Eric pulled up, got out of the car, and told Gonzalez, "I told you I was going to kill you." He said something about pistols or guns. Eric went to the trunk of the car, opened it, and reached inside. Eric pulled out what Gonzalez thought was a shotgun. Gonzalez ran and hid behind a tree. Eric was holding something covered with a black jacket. It turned out to be a two-by-four. He held it "in the manner of a pistol."
Huber testified that Eric held the two-by-four like a baseball bat and advanced toward them saying, "You're gonna get this family hurt. This bitch isn't worth protecting. We're gonna come back for you. You're making a big mistake." Eric said, "You've never heard of the Seven Trees." He said to Shante, "I'm gonna kill you, bitch. I'm gonna kill you." He pointed at Huber and said, "All you people are gonna get fucked up." Eric said to Justin Perez, "You're gonna get your family hurt. We'll get you. She's not worth protecting."
Huber was impeached with prior criminal convictions.
When Eric left, Huber drove to the corner with Gonzalez and watched the house from a distance for "security." Huber "wanted to see it coming or if it happened again, [he] wanted to be able to follow him or something." The police arrived about five minutes after Eric left and interviewed Huber, Gonzalez, Perez, and Perez's wife.
Eric testified that although he "might have yelled a little bit" he never threatened to kill Shante, Huber, Gonzalez, or Perez. He said that he and Shante had quarreled that morning because she wanted him to ride with her to Richmond so that she could have access to the car pool lane but that he "didn't want to do it." Shante "got into an uproar" and left. Eric testified that Shante returned and started "purposely agitating" him by throwing things around and then left again. He locked the door and placed a couch in front of it. She returned and, in pounding on the door, broke the window in the door, cutting her arm. When Eric saw that Shante was bleeding, he tried to assist her, but she grabbed a dish towel and "stormed out of the apartment again."
Eric was impeached with six prior felony convictions.
Eric testified that he tried to follow Shante in the white car to convince her to get medical treatment. When he pulled up next to where she was on the sidewalk to try to talk to her, she "started running towards that house." Eric was telling Shante, "You're stupid, what are you doing, I am just trying to help you." Eric testified that Shante did not scream for help or say that Eric was going to kill her. Gonzalez was cutting branches and holding a saw. From his position up in the tree Huber called, "Get the fuck back, it's not going to happen here." When Shante hid behind Gonzalez, Eric tried to explain that she was his wife and that Huber and Gonzalez had the wrong impression of the events but that Gonzalez and Huber just kept yelling at him to leave. Gonzalez threatened to call the police. Eric testified that he told Gonzalez, "I was going to call [the] I.N.S. on him if he don't get out of my business and have him deported" and Gonzalez put his phone away. Gonzalez became angry and aggressive toward Eric.
Eric testified that he left after telling Shante not to worry and that he would return for her. He went to get a soda and call his mother-in-law to tell her what had happened. His mother-in-law was some distance away, so, rather than wait for her, Eric returned to the Perez house where he had left Shante. Gonzalez started coming at him with branches in his hand, so Eric reached into his trunk for something with which to defend himself. He found a piece of wood that happened to have a jacket on top of it and pulled it out. He left a few seconds later.
Counts 1, 2, 3, and 4 arose from telephone contact with Huber. As a result of the August 2004 incident, Eric was placed in custody for a parole violation. Huber, Gonzalez, and Perez testified at an administrative hearing in late 2004. Criminal charges were filed against Eric, and Huber testified at the preliminary examination for those charges in December 2004.
On March 22, 2005, while Eric remained in custody pending trial on criminal threats charges, his brother Jesse Adams was paroled from prison, where he had been for over 14 years. Eric called Jesse and Shante numerous times from the jail. Later that month, Huber received a hang-up phone call. According to Huber's caller ID, the call was from "Leonard Hodge" with a phone number of 270-7483. Although Huber did not know anyone by that name, he tried calling the number back and it was busy for about half an hour. Huber received another call, and the caller ID said "number blocked." Huber testified that when he picked up the phone he "got threatened." In a 45-second call, a man's voice, which was "pretty distinctive" and sounded "like a Mike Tyson impersonation," addressed him by name. The man said, "People that talk, wind up in graves." The man said, "You got a nice house, nice kids. You don't want to lose them. . . . Do the right thing. You don't want to wind up dead." Huber understood that by "talk" the voice meant "testify . . . in relation to the case against Eric Adams." Although he took this as a threat to his safety and that of Justin Perez and his family, he did not immediately report this call to the police because he "thought it was all B.S." However, the next day he called the Leonard Hodge number and the person who had threatened him answered the phone. The telephone number was that of Leonard Hodge, appellants' uncle, with whom Jesse was living. Eric Adams and Jesse Adams were charged with attempting to dissuade a witness by threat of force, making a criminal threat, and conspiracy to commit witness intimidation in counts 1, 3, and 4. Eric was charged in count 2 with attempting to dissuade a witness while having a prior conviction for witness dissuasion.
Counts 5 through 10 charged unlawfully causing a fire to an inhabited dwelling, attempting to dissuade a witness by threat of force in violation of Penal Code section 136.1, and conspiracy to violate section 136.1. About a week after receiving the threatening phone call, Huber arrived home at the end of the day and his grandfather told him that someone had just rung the doorbell. Huber went out and looked around, but did not see anything. On April 3, 2005, Justin Perez called Huber, sounding nervous and shaken, and told Huber that "a bomb went off on his porch." Perez asked Huber to come over and he did so. Huber described the scene at the Perez home. He testified, "The front door was all burnt. There was black soot up all the walls. . . . [T]he doormat was burnt. All the plants were burnt; the smell of gas." The responding San Jose police officer found a lighter and a rolled-up newspaper that smelled of gas on the front porch near the front door of the Perez home. On the walkway leading to the front porch the officer found a small plastic container commonly used to store gasoline. An arson investigator who testified as an expert witness determined that the fire had been set deliberately using gasoline as an accelerant and a lighted, rolled-up newspaper to ignite it.
Eric Adams and Shante Adams, but not Jesse Adams, were charged in these counts.
The fire at the Perez home prompted Huber, fearing for his safety and that of his family, to report the threatening phone call that he had received to the police. A few days later, Huber was called to the San Jose Police Department. Parole Agent Joseph Montiel and another officer played a tape recording for him. Huber recognized the voice on the tape and was positive that it was the same one that he had heard during the threatening phone call. The voice on the tape was that of Jesse Adams. A few weeks later, a detective played three more tape recordings for Huber. Again, Huber recognized the voice that he had heard during the threatening phone call. Again, the voice was that of Jesse Adams. The voices that Huber did not recognize were those of Leonard Hodge and his son.
At the time of the firebombing Perez told an officer that, when he was trying to put out the fire, he saw a white, older model, American-made sedan, possibly a Cadillac, with tinted windows and lowered body, driving slowly past his house. He told the officer that "it was the same type of vehicle" that he had seen Eric driving at the time of the August 2004 threats. On April 20, 2005, the police seized and impounded Shante Adams's white car, which Eric had been driving on August 23, 2004. The car was registered to Shante Adams and was parked in front of her house. Detective Fischer of the San Jose Police Department testified that when the car was opened up at the impound yard he could smell a "faint smell of gasoline" inside the car.
Fischer's partner and the tow yard employee both had colds and "couldn't smell" because "their sinuses were plugged up."
On April 24, 2005, Dennis Johnsen, an arson investigator for the Santa Clara County Fire Department went to the tow yard to examine the interior of Shante's white car. Johnsen brought along Rosie, a yellow Labrador retriever who was certified as an "Ignitable, Flammable Liquid Detection Canine." A photograph of Rosie was introduced into evidence. Although Johnsen could not smell any gasoline inside the car, Rosie alerted to some pink cloth by the front passenger seat and the floor mat in the rear on the passenger side. Although no laboratory tests verified the presence of petroleum distillates on samples taken from the car, Johnsen testified that Rosie's nose was more sensitive than the laboratory equipment.
In support of the conspiracy charges, the prosecution introduced evidence concerning phone calls made by Eric, while he was in custody in the Santa Clara county jail, to Shante and Jesse. All inmate telephone calls are recorded and stored, including information about the date and time of the call and the number called. Eric called Jesse several times between March 22 and April 11, 2005. He also called Shante numerous times between March 23 and April 22, 2005. Compact discs of some of these telephone calls, and transcripts of the calls, were introduced into evidence.
Agent Joseph Montiel, a parole agent with the California Department of Corrections and Rehabilitation, testified as "an expert in the area of interpreting street lingo or jail lingo." He said that when Eric discussed his pending case with Jesse and Shante in these conversations, he did not "always speak in a normal, clear manner that you would expect from people in normal, everyday life." He said Eric used "ambiguous ways of phrasing things" and "code words."
Montiel testified that he had listened to a phone conversation between Eric and Shante that took place the night of March 21. In this conversation, Eric referred to "the German" and "the Mexican dude," and Montiel testified that Eric, by saying that one "ain't shit," meant that one was "not too strong." Eric referred to "the homeowner" and Montiel testified that Eric said, "at first he thought he wasn't shit but then after thinking about it, then he thought that he was a threat."
On March 23, Jesse told Eric that "the situation" was going to proceed by Shante taking him to "where it's located." Jesse was going to "talk about family life" with someone. Eric and Jesse expressed concern that the "motherfuckers" might "peep" or "squeal" on Jesse in which case Jesse would be "in the same position" as Eric. Eric said that he "was going to whoop [Shante's] motherfucking ass" and that "these motherfuckers stepped in [his] business."
Jesse responded, "That ain't cool. You be hitting a female. . . . No violence shit. That's a female." Eric explained, "Hey, sometimes, when you're living with a female, you're going to see, man, sometimes you got to choke that bitch out."
Montiel testified that in another March 23 conversation, Eric called Shante and said that he was "fighting for his life" and that he wanted her to "take his boy to go holler at someone." On March 27, Eric called Shante and told her "you're going to drive him there." He said, "You ain't just going to set my boy up, you know? . . . Cause you're the reason, remember that." Eric reminded Shante, "I'm in jail because of you." His tone was generally threatening and abusive.
He told Shante, "I don't like you or your family. I think your brother is a mark. I think you're an ugly bitch with a long neck and short hair. I think your momma is a crack fiend. I think your daddy's a child molester."
On March 29, 2005, Eric called Jesse and Jesse asked him if he "got the kite" that he had "blasted" to him. Jesse told Eric that there was something that he wanted to tell him but that he "can't talk about." Eric told him, "You got to speak on it cleverly, you know?" Jesse referred to "rat head" and said "I did it. . . . It was on a different way . . . Switcherella, you know what I'm talking about?" Montiel testified that Jesse told Eric that "something would happen by the weekend." When Eric asked what would happen, Jesse told him it would be "like Pac does, real thug shit." Montiel explained that "Pac" was a reference to "Tupac Shakur, who was a rapper who rapped about guns, violence, gangs, being a thug, [and] had 'thug life' tattooed on his stomach."
On the evening of April 2, 2005, the day before the Perez house was firebombed, Eric called Jesse and Jesse told him "tonight's the night." Montiel testified that the same evening Eric called Shante, who told Eric that "things were ready" and "it's all gravy." On April 4, 2005, someone called "Johnny" phoned Shante from the jail and asked her "what's up with the kid's folks." Shante said, "everything is good." Johnny asked her, "When is the last time you've seen them?" and Shante answered, "yesterday."
On April 6, Eric called Shante and made reference to the video game "Grand Theft Auto." Montiel testified that Eric talked about different parts of the game including the significance of stars and "how the stars go away." Montiel explained that in Grand Theft Auto "the amount of stars one accumulates signifies the amount or the level that the law enforcement or police are after you." The game gives the player options to "make the stars go away" such as having a stolen car repainted. Eric told Shante "to wash the car to vacuum the car inside and out and to change the floor mats."
On April 20, Eric called Shante and she told him that her car had been impounded. Eric asked Shante if she "had washed the ceezar . . . like he had suggested." Montiel explained that "ceezar" was "car with 'eez' inserted in the middle of the word." Shante said that she had. On April 22, Eric called Shante and told her "you know if you have any evidence in your car of what you did, you're going to jail."
Montiel also testified about a parole search of the home where Jesse lived with Leonard Hodge. The police seized a letter from Eric to Jesse and a reply letter that Jesse had not finished writing. They also seized documents listing Jesse's address and phone number consistent with the Hodge home.
In his testimony, Eric denied that he conspired to dissuade witnesses. He explained that when he said that the "Mexican dude isn't too strong" he may have "been talking about wrestling, sports, ice hockey." Most of his conversations with Jesse were about Jesse trying to find work and that Eric wanted Shante to drive Jesse to places to help him with this. Some of his conversations were about Eric's dissatisfaction with his public defender and his plans to retain private counsel. He testified that he did not know what a "[c]eezar" was.
Eric suggested that the prosecutor "call [his] fake-ass expert and have him explain."
Jesse testified and denied making the threatening phone call to Huber or being involved in the firebombing of the Perez home. He denied speaking in code to Eric and said that in their phone conversations they discussed how he could go about getting a job and Eric's problems with Shante. Jesse said that Tupac Shakur was "a poet" and that a "thug" is "a person that came from nothing . . . trying to raise from poverty . . . and trying to do it his way, trying to make it."
Jesse Adams was impeached with several prior criminal convictions.
Jury Instructions
Instructions on Penal Code section 136.1, subdivision (c)(1)
Eric Adams contends, "Appellant's judgment must be reversed, because the trial court erroneously instructed the jurors regarding the elements of counts 1, 2, and 6 by substituting an instruction regarding violations of Penal Code sections 137." Jesse Adams contends, "The court violated appellant's federal and state constitutional rights to due process (14th Amend.) and trial by jury (6th Amend.) when it failed to instruct sua sponte on the elements of the crime of dissuading a witness by threat of force under section 136.1(c)(1)."
Appellants were charged in counts 1, 2, and 6 with violating Penal Code section 136.1. Counts 4 and 10 each charged a violation of Penal Code section 182, conspiracy, with the target crime being a violation of Penal Code section 136.1. Although counts 1, 2, and 6 each charged a violation of Penal Code section 136.1, the trial court instructed concerning these counts with CALCRIM No. 2620, which is the jury instruction that defines a violation of Penal Code section 137. For the conspiracy counts alleging the target crime of a violation of section 136.1, the trial court again defined the elements of a violation of section 136.1 by using CALCRIM No. 2620, the instruction which defines the elements of a violation of Penal Code section 137.
Eric Adams and Jesse Adams were charged in count 1, with Huber as the named victim, and Eric was charged in count 6, with Perez as the named victim, with violating section 136.1, subdivision (c)(1). Count 2 named Huber as the victim, and alleged the same time period as count 1, but charged Eric Adams with violating Penal Code section 136.1, subdivision (c)(3), which prohibits attempting to dissuade a witness from testifying through threat of force after having suffered a prior conviction for this offense.
When the prosecutor requested jury instructions, he specifically asked the court to give CALCRIM No. 2620 for counts 1 and 6 and CALCRIM No. 2622 for count 2 and as a lesser included offense to counts 1 and 6. When the trial court placed on the record a summary of the "lengthy discussions which went on for probably a day total" about jury instructions, the court said "We went over each instruction word by word twice, sometimes three or four times, so this doesn't reflect our total conversations, this just reflects our debated issues." No mention was made of the instructions discussed here.
Penal Code section 136.1, subdivision (c)(1), is violated by one who "knowingly and maliciously" attempts "to prevent or dissuade any witness or victim from attending or giving testimony at any trial . . . [w]here 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 . . . ." Penal Code section 137 is violated by one who "attempts by force or threat of force . . . to induce any person to give false testimony or withhold true testimony . . . from a law enforcement official." Eric Adams points out, "Sections 136.1 and 137 are directed at different goals, the former at preventing testimony at all and the latter at influencing whatever testimony is given. (People v. Womack (1995) 40 Cal.App.4th 926, 931.) Further, unlike section 136.1, section 137 does not require a 'malicious' mental state on the part of the accused."
Using the language of CALCRIM No. 2620, the trial court told the jury, "This next instruction relates to dissuading witnesses. [¶] Defendants Eric Adams and Jesse Adams are charged in Count 1, and defendant Eric Adams is charged in Count 6, with using force or threatening to use force against a person to cause that person to give false testimony or information or withhold true testimony or information. [¶] This instruction I am now reading is also for your consideration of the definitions and elements of the target crimes within the conspiracy charges found in Counts 4, 7, and 10. [¶] To prove the defendant guilty of the crime charged in Count 1, the People must prove: One, the defendant or person for whose actions the defendant is liable . . . used force or threatened to use force against Christopher Huber; and, two, when the defendant . . . used force or made the threat, he intended to cause Christopher Huber to give false testimony or withhold true testimony."
CALCRIM No. 2622 provides, "To prove that the defendant is guilty of [a violation of Penal Code section 136.1], the People must prove that: (1) The defendant maliciously tried to prevent or discourage the witness from attending or giving testimony at trial, and . . . (3) The defendant knew he was trying to prevent or discourage the witness from attending or giving testimony at trial and intended to do so." It further provides, "A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice." The instruction defines a "witness" and states, "It is not a defense that the defendant was not successful in preventing or discouraging the witness. It is not a defense that no one was actually physically injured or otherwise intimidated."
Eric Adams argues, "Because it described a different offense from that charged against either defendant, CALCRIM 2620 did not provide the jurors any guidance regarding the offense they were charged with adjudicating. The jurors were erroneously told that all they needed to find in order to (a) convict appellants on Counts 1 and 6, and (b) find the necessary criminal objective to the conspiracies alleged in Counts 4 and 10, was that appellant (or his co-conspirator) knowingly 'used force or threatened to use force against' Huber and Perez, in order to cause either of those witnesses to 'give false testimony or withhold testimony.' . . . The instruction did not require the jurors to find that appellant specifically intended to dissuade Huber or Perez from giving any testimony at all or that his intent must have been malicious. Further, it permitted the jurors to find appellant guilty based on an erroneous legal theory that knowingly seeking to induce false testimony constituted a violation of subdivisions (a) and (c) of Penal Code section 136.1."
Respondent argues that "the correct instructions were given and the issues resolved against appellants under those completely unobjectionable instructions. At most, an ambiguity was created which, in context, was resolved." For this argument, respondent relies on the fact that the trial court did instruct with CALCRIM No. 2622, which defines a violation of section 136.1, at one point during the instructions, and that the trial court instructed the jury to "Pay careful attention to all of these instructions and consider them together" and that "Some of these instructions may not apply."
The court did give CALCRIM No. 2622, the proper instruction when a violation of section 136.1 is charged, in instructing the jury on count 2, which charged Eric with a violation of section 136.1, subdivision (c)(2), for the telephone call Huber received at the end of March 2005. Count 2 of the information charged that Eric had committed "the crime of dissuading or attempting to dissuade a witness/prior conviction for same" in that Eric "did knowingly and maliciously prevent and dissuade and attempt to prevent and dissuade a witness and victim, Christopher Huber, from attending and giving testimony at a trial" and had previously been convicted of a violation of Penal Code section 136.1. In instructing on this count, the trial court defined the intent for "intimidating a witness" as to "maliciously tr[y] to prevent or discourage [the witness] from attending or giving testimony at trial." The trial court also defined "maliciously."
We must reject respondent's argument that the jury would have used CALCRIM No. 2622 to cure the misinstruction as to the other counts. The court told the jury that Eric was "charged in count 2 with intimidating a witness. This is a different crime than attempting to dissuade a witness by use of force or threat of force which is found in Counts 1 and 6. [¶] The crime of intimidating a witness is also a lesser uncharged crime to the greater charged crimes of attempting to dissuade a witness by use of force or threat of force which is found in Counts 1 and 6. . . . The crime of intimidating a witness is also the target crime of the conspiracies charged against defendant Eric Adams and Jesse Adams in Count 4 and against defendant Eric Adams in Count 7." We cannot say that the jury would have taken an instruction that it was specifically told applied only to count 2 and used it to define the elements of other crimes charged that it was specifically told were "different" than count 2. Furthermore, the verdict forms for the lesser offenses were left blank; there is no reason to believe that the jury used the instruction for count 2 for a purpose other than that for which it was given.
Respondent argues, "There was no prejudicial error in adapting an instruction created with section 137 in mind to cover the section 136.1 offenses charged here." Respondent thus acknowledges that CALCRIM No. 2620 was written to apply to a violation of section 137, rather than a violation of section 136.1. However, it does not appear to this court that there was any "adapting" of CALCRIM No. 2620 to make it applicable to section 136.1 instead of section 137. The trial court specifically instructed the jury that it was to determine whether the defendant had the intent to cause the witness "to give false testimony or withhold true testimony," which is the intent for a violation of section 137.
The trial court should have used CALCRIM No. 2622, rather than CALCRIM No. 2620, to define the elements of a violation of section 136.1. The parties differ sharply in their views on what type of error this was. Eric Adams argues, "By instructing the jurors that they can convict appellant both by finding facts irrelevant to the charge and without finding elements of the charged offense, the instruction implicitly effectively reduced the quantum of evidence necessary to convict appellant. An instruction that reduces the quantum of evidence necessary to convict is structural error entitling the defendant to reversal. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282 . . . .)" As another basis for application of a reversal per se standard, Eric Adams contends that the error "constitutes instruction with a legally erroneous theory of guilt" and thus is reversible error under People v. Guiton (1993) 4 Cal.4th 1116, 1128. Jesse Adams argues, "Because the instruction based on CALCRIM 2620 required the jury to find none of the facts supporting the elements of section 136.1 (c)(1), the consequence 'vitiates all the jury's findings' pertinent to count one and is 'necessarily unquantifiable and indeterminate' within the Sullivan analysis, and, hence, unquestionably qualifies as 'structural error.' " Jesse Adams argues that even under a Chapman standard, the prosecution cannot show that the verdict actually rendered here was unattributable to the error because "the trial court instructed on the wrong law and failed to require the jury to find facts to support the elements of the crime charged." Far on the other end of the instructional error spectrum, respondent argues, "Any error in giving an extraneous instruction that might create ambiguity as to a required element should be evaluated using the [People v.] Watson [(1956) 46 Cal.2d 818, 836] standard."
Chapman v. California (1967) 386 U.S. 18, 24 (87 S.Ct. 824).
Both the United States and California Supreme Courts have clearly stated that the failure to instruct a jury on the statutory elements of an offense is a trial error subject to harmless error analysis. (Neder v. United States (1999) 527 U.S. 1, 7-15 [119 S.Ct. 1827]; People v. Flood (1998) 18 Cal.4th 470, 492-503; accord Mitchell v. Esparza (2003) 540 U.S. 12, 16 [124 S.Ct. 7].) We recognize that neither high court has had occasion to review a case involving the omission of most elements of an offense, as opposed to a single element, from jury instructions. However, we believe that the omission of statutory elements of an offense, whether of one or multiple elements, is fundamentally a trial error and differs markedly from the limited class of constitutional errors that defy harmless error analysis.
CALCRIM No. 2620 did not require the jurors to find that Eric and Jesse specifically intended to dissuade the witnesses from giving any testimony at all, as contrasted with the intent, described in CALCRIM No. 2622, to cause a witness to give false testimony or withhold true testimony from a law enforcement official, nor did it inform the jury that their intent must have been malicious. However, appellants made no attempt during trial to argue the factual findings relevant to the misinstruction. The giving of CALCRIM No. 2620 did not prevent appellants from presenting evidence on their defenses to the affected counts, which was that Eric and Jesse were not discussing witness intimidation or dissuasion in their phone calls, that Jesse did not make the threatening phone call to Huber, and that Eric was not involved in the firebombing by conspiring with Shante. In convicting appellants of the violations of section 136.1 and the conspiracy charges, the jury necessarily rejected the defenses that neither Eric nor Jesse had anything to do with the threatening phone call to Huber and that Eric had nothing to do with the firebombing of the Perez home. No reasonable jury could have rejected these defenses yet have determined that appellants did not commit the crimes charged. Neither appellant argued that the acts committed were not malicious.
Instructing the jury with CALCRIM No. 2620 instead of CALCRIM No. 2622 did not affect the content of the record. Based on the entire record, the error cannot be considered to have rendered appellants' trial fundamentally unfair or to have prevented the trial from reliably serving its function as the means for determining appellants' guilt. In these circumstances, reversal based on the error would send the case back for a retrial focused not on the issue omitted by the instruction --that the intent was to prevent or discourage the witnesses from attending or giving testimony at trial, rather than to cause the witnesses to give false testimony or withhold true testimony --but on contested issues on which the jury was properly instructed. We conclude the proper standard is Chapman harmless error. (Chapman v. California, supra, 386 U.S. at p. 24.) We may affirm the jury's verdict despite the error if, but only if, it appears beyond a reasonable doubt that the error did not contribute to the verdict. Thus, we affirm despite the error if the jury that rendered the verdict could not rationally have found the elements were unproven; that is, the error is harmless if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted elements were not. (Neder v. U.S., supra, 527 U.S. at pp. 18-20.)
In our review of the record, we find no evidence that would support a factual theory under which the omitted elements were not proven. The information described a violation of section 136.1 as "dissuading or attempting to dissuade a witness by use of force or threat of force" by one who "did knowingly and maliciously prevent and dissuade and attempt to prevent and dissuade a witness and victim . . . from attending and giving testimony at a trial, proceeding and inquiry authorized by law, where such act was accompanied by an express and implied threat of force and violence upon the person and property of a witness, a victim and any third person." Counsel for Jesse, perhaps reading from this, told the jury that Jesse was charged "in Count 1 of dissuading or attempting to dissuade by use of force or threat of force, violation of Section 136.1 (c)(1), a felony, did knowingly, maliciously prevent and dissuade and attempt to prevent and dissuade a witness and victim Christopher Huber from attending and giving testimony at a trial. [¶] Now, the common thread to Jesse Adams, of course, is this alleged Huber phone call. That is what you're going to have to decide whether or not legitimately, Jesse Adams made that phone call or someone else did." Counsel referred to the conspiracy charge as "the biggy," and said "certainly dissuading a witness or threatening a witness are not legal" but argued that the jury had to determine "whether or not we have an agreement between Jesse Adams and Eric Adams to dissuade the witness." Counsel argued that there was room to doubt whether the phone call that Huber had reported had ever actually been made. Counsel referred to the instructions concerning circumstantial evidence, and the jury's obligation to accept any reasonable interpretation that is favorable to a defendant, and argued that the jail recordings could be reasonably interpreted as conversations about Eric encouraging Jesse in his efforts to obtain a job. Counsel argued that the portions of the jail phone recordings relied upon by the prosecution did not support the conspiracy charge because the prosecution "selected them out of [the recordings] and then they gave them chosen meanings and Mr. Montiel would then confirm whatever [the prosecutor] asked him." He said, "I beg you not to take anything out of context but to look at it together and see what the meaning of the – what the meaning of the whole tape recording is."
Counsel for Eric Adams argued that, after the firebombing, the police, realizing that Eric was in custody and could not have committed the firebombing personally, decided that "maybe somebody assisted him. So let's go through all the phone calls that Mr. Adams has made out, 20 or so phone calls to his brother, probably 100 calls to his wife during that time, and out of it they start drawing words. One word from here, one word from there, maybe a couple here. And they start interpreting that he's involved in some kind of conspiracy. Let's charge conspiracy in every possible way. Aiding and abetting. Some jury is going to see this thing because he has a prior record. They're going to believe, yeah, he's involved in a conspiracy."
As respondent argues, "To the extent the challenged instruction directed the jury to focus on whether appellants' intent was to 'cause that person to give false testimony or information or withhold true testimony or information,' rather than to prevent or discourage that person from attending or giving testimony at trial, it was an uncontested issue. The fine shades of meaning between these two intents was not an issue. Any juror instructed under either CALCRIM Nos. 2620 or 2622 on these facts would necessarily find that the threats were issued to affect the outcome of trial and whether an acquittal for lack of evidence might be accomplished by completely discouraging a witness's attendance or by causing a witness, although in attendance, to withhold testimony seems a distinction without a difference." This trial fully litigated the central issue of who made the threats to the witnesses, and there is nothing in the record to suggest that any threat was made with an intent inconsistent with a violation of section 136.1 or was not malicious. Accordingly, any error in instructing the jury with CALCRIM No. 2620 was harmless beyond a reasonable doubt.
Instructions on Penal Code section 136.1, subdivision (c)(3)
Eric Adams contends that his "judgment must be reversed because the court erred in failing to modify CALCRIM 2622 to correctly state the law applicable to this case." Count 2 charged Eric Adams with violating Penal Code section 136.1, subdivision (c)(3). Penal Code section 136.1, subdivision (c)(3), is violated by any person who "knowingly and maliciously" attempts "to prevent or dissuade any witness or victim from attending or giving testimony at any trial" by threat of force and "the act is committed by any person who has been convicted of any violation of this section [or] any predecessor law."
The trial court instructed the jury as to count 2 with CALCRIM No. 2622, which is entitled "Intimidating a Witness." Eric contends that the use of the term "intimidation" in this instruction is error. He argues, "Simply 'intimidating' a witness is insufficient without this specific intent, and it is an impermissibly misleading descriptive title for the instruction regarding the offense. Intimidation is a broad term with no specific goal to be achieved thereby. However, section 136.1 criminalizes conduct specifically directed at one aim: dissuading testimony." Eric contends that CALCRIM No. 2622 failed to provide the jurors with all the elements of dissuading a witness as charged here because it "omitted the element that appellant must be found to have suffered a prior conviction for violating section 136.1."
The trial court also instructed the jury with CALCRIM No. 2623. That instruction provided, "If you find the defendants guilty of intimidating a witness, you must then decide whether the People have proved the additional allegation that the defendant acted in furtherance of a conspiracy or used or threatened to use force. [¶] To prove this allegation, the People must prove that: [¶] 1. The defendant acted with the intent to assist in a conspiracy to intimidate a witness; or [¶] 2. The defendant used force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness or victim. [¶] Instructions elsewhere in these instructions explain when someone is acting in a conspiracy to intimidate a witness. You must apply those instructions when you decide whether the People have proved this additional allegation. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden for any allegation, you must find that the allegation has not been proved."
The title of CALCRIM No. 2623 is "Intimidating a Witness: Additional Findings." Eric Adams complains that this is an "offensive misnomer," and argues that "the instruction fails to direct the jury to the fact that these are elements of the charged offense under subdivision (c). They are not facts subordinate to the charge as are conduct enhancements." Appellant argues, "Though the jury found appellant used a threat of force, because it was preprinted in the main body of the verdict forms for Counts 1 and 6, it is important to remember that these findings were made according to the instructions for a violation of Penal Code section 137, not 136.1. In other words, the jury found he used a threat of force in attempting to influence Huber and Perez to give false testimony, not in attempting to dissuade them from testifying at all."
For the same reasons that any error in giving CALCRIM No. 2620 rather than CALCRIM No. 2622 for the counts discussed above was harmless, any error in giving CALCRIM No. 2622 combined with CALCRIM No. 2623 for count 2 was harmless beyond a reasonable doubt. Eric Adams specifically requested that any reference to his prior conviction for violating Penal Code section 136.1 be excluded, and the trial court granted this request after Eric Adams admitted the prior conviction. In convicting appellant of the violation of section 136.1, subdivision (c)(3), the jury necessarily rejected Eric's defense that he had nothing to do with the threatening phone call to Huber. No reasonable jury could have rejected this defense yet have determined that appellant did not commit the crime charged in count 2. Eric did not argue that the caller did not threaten to use force. Eric did not argue that there was any failure of proof regarding the intent with which the threatening call was made. Any juror instructed with the modifications to CALCRIM Nos. 2622 and 2623 that appellant urges would certainly have convicted Eric Adams of the offense charged in count 2.
Substantial Evidence of Sustained Fear
Eric Adams was convicted in counts 11, 12, and 13 of making criminal threats to Huber, Gonzalez, and Perez during the incident on August 23, 2004, in the Perez yard. In count 3, Jesse Adams was convicted of making a criminal threat to Huber during the telephone call to Huber in late March 2005, and Eric Adams was convicted in the same count based on his vicarious liability as a conspirator. At the close of the prosecution's case-in-chief, Eric Adams moved for a judgment of acquittal under Penal Code section 1118.1, arguing that there was insufficient evidence, particularly as to the "sustained fear" element of that charge, to support a conviction for criminal threats during the August 23 incident. The trial court denied that motion.
The trial court said, "The Court is going to deny [the] defense motion because there was conflicted testimony and there was also enough for the jurors to decide that issue, the ultimate fact of those alleged crimes and so there is no need for a directed verdict."
Eric Adams contends, "Appellant's judgment must be reversed, because the trial court erroneously denied his motion for acquittal on counts 11 through 13 and there was no substantial evidence Huber, Gonzalez and Perez experienced sustained fear as a result of appellant's statements on [August] 23." Jesse Adams contends, "Appellant's count three conviction of making criminal threats under section 422 must be reversed because it is unsupported by sufficient evidence showing that Huber experienced 'sustained fear' as a result of the telephone call on March 29 or March 30. This conviction based on insufficient evidence denied appellant's constitutional rights to due process and a fair trial."
"To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Johnson (1993) 6 Cal.4th 1, 38.)
Under Penal Code section 422, a threat to commit a crime that will result in death or great bodily injury to another person is a criminal threat if, "on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety."
The requirement of section 422 that the threat must cause the victim "reasonably to be in sustained fear for his or her own safety" "has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) There is no precise definition of or limitation on the amount of time a victim must experience fear in order to satisfy this element of section 422. However, "sustained fear" has been described as "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Threats are judged in their context and not solely on the specific words that were spoken. "[A]ll of the circumstances can and should be considered in determining whether a terrorist threat has been made." (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.) "A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. [Citation.]" (In re George T. (2004) 33 Cal.4th 620, 635.) Although nonverbal conduct alone is insufficient, a combination of words and gestures may constitute a terrorist threat under section 422. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442-1446.)
Huber-August 23 threats in the yard
Appellant Eric Adams argues, "Appellant submits that taken as a whole, Huber's testimony regarding his reaction to appellant's words, as distinct from Huber's unrealized fear that appellant had a gun, was not substantial evidence he experienced substantial, 'sustained' fear. When permitted to testify in his own words, Huber consistently denied fearing appellant's words, though he understood them to be intended as threats."
Huber testified that Eric told him that he was going to get hurt for helping Shante and that Eric said, "I'm gonna kill you, tree man." When Eric returned the second time, he pointed at Huber and said, "All you people are gonna get fucked up." When Huber was asked whether he took what Eric said as threats, he answered, "Yeah. Sure." When he was asked whether the threats caused him "some concern," he answered, "At the time, no. You know, I understand fighting with your girlfriend. You know, I can understand he was angry and you say some things. But the second time he came back, I really got concerned." Huber said he was "pretty in shock by the whole thing." When he was coming down from the tree he was "just wondering if it was going to end" and "absolutely" felt like he had been threatened. Huber testified that when he moved his truck to a corner near the Perez home to watch to see if appellant would return he was concerned about "gangs," "weapons," and "violence." Huber testified that when he was talking to the police that day, "I was feeling fine . . . I was concerned . . . about what was going to happen more to the family than, you know, myself obviously. But, you know, it was just kind of a trippy thing that happened."
Appellant's characterization of this testimony is that, "Huber consistently testified he was not concerned by appellant's words, because he took appellant's words to be merely blowing off steam in anger during the fight with Shante. . . . Only by very directed leading questions was the prosecutor, on redirect able to elicit 'yes' responses to whether 'after Eric Adams had left for the second time' was Huber 'concerned about . . . gangs . . . weapons . . . [and] violence.' " This characterization overlooks that, before the redirect examination, Huber had testified that when Eric left the second time, Huber drove to the corner and watched the house from a distance for "security." He "wanted to see it coming or if it happened again, [he] wanted to be able to follow him or something." He waited there with Gonzalez until the police arrived. Gonzalez testified that Huber seemed scared. He said, "I know him, and I could tell by looking at his face." That Huber may have had greater fear about the safety of his brother-in-law's family than his own safety does not negate his testimony that he himself felt fear as a result of Eric's repeated threats. Although appellant describes this as "a proactive and confrontational attitude directed at rectifying the situation," it does appear that Huber was frightened enough to stand watch for some time away from the house until the police came. There was sufficient evidence from which a jury could reasonably conclude that Huber experienced sustained fear for his safety and that of his brother-in-law's family and the Penal Code section 1118.1 motion was properly denied.
Gonzalez
Gonzalez testified that after Shante was hiding behind him, and Eric challenged him to a fight, Shante ran to the garage. He said that Eric did not run toward the garage "because he stopped to argue with me." Gonzalez pulled out his phone and Eric said, "Oh so you're going to call the police? . . . Oh, so you're going to protect this whore?" Eric told him, "So I got some guns. I'll be back." Gonzalez testified that when Eric got into his car, Eric said he was going to kill Gonzalez for protecting Shante. From the car, Eric said, "Nobody messes with the Barrio Seven Trees." Gonzalez took this as a "simple threat" that referred to "like a gang or something like, like the barrio." Gonzalez said that when Eric left the first time he "wasn't scared. I just felt he was not coming back and we continued working." When Eric retuned, he told Gonzalez, "I told you I was going to kill you." Eric then called Gonzalez a "fuckin' Mexican" and Gonzalez took a step forward. He testified that he stepped forward, "Because I was very angry. I was tired of this and he insulted me." When Eric then reached into the trunk of the car and pulled out what "looked like a shotgun" Gonzalez ran and hid behind a tree.
Gonzalez testified that when Eric left the second time he was worried about "gangsters" and afraid that Eric would shoot him. He went to Huber and, once Huber came down from the tree, he accompanied Huber in the truck to watch at the corner because they "were afraid that more people would come back." Huber testified that Gonzalez was "just pretty blown away by the whole thing."
Appellant argues that "It was only for the brief moment that [Gonzalez] mistakenly believed appellant was pointing a gun at him that Gonzalez was afraid. That fear was brief or fleeting, and it was not based on anything appellant said, but on what he did." This argument completely ignores the surrounding circumstances that accompanied Eric taking what the others initially thought was a gun out of the trunk. Certainly, in the absence of Eric's earlier threats, his movements at the trunk might have been barely noticed by Gonzalez. But combined with Eric's repeated threats and angry demeanor, Eric's retrieval of the two-by-four from the trunk support the jury's finding that Eric made a criminal threat. In Franz, the combination of a "shushing" sound and a throat slashing gesture made to witnesses by the defendant while police were present to investigate a report of domestic violence was found sufficient to constitute a threat under section 422 to inflict great bodily injury or death on witnesses if they talked to the police. (People v. Franz, supra, 88 Cal.App.4th 1426, 1442-1446 . ) That Gonzalez may have also been angry at Eric for insulting him does not defeat the jury's finding that he was afraid. Fear and anger are emotions that often accompany one another. That Gonzalez's fear was sustained, rather than just brief or fleeting, is demonstrated by the fact that he accompanied Huber to watch and wait in the truck because they were "afraid" that Eric would return with others. Sufficient evidence supported the jury's verdict on this count and the trial court did not err in denying the Penal Code section 1118.1 motion.
Perez
Appellant argues, "Only after a leading question by the prosecutor asking whether Perez 'was afraid,' did Gonzalez confirm that Perez 'said something that he was afraid.' " Huber testified that Perez's emotional state during the encounter in his yard was "at first confusion then, you know, fear and concern." He said that Perez's wife was "a lot more emotional about it . . . . She was crying about what happened and really concerned about the woman." Gonzalez testified that Perez appeared "surprised." The prosecutor asked, "Was he afraid?" and Gonzalez answered that Perez "said something that he was afraid for his children." During deliberations, the jury asked for the testimony of the responding police officer "regarding his interview with Justin Perez." The officer had testified that Perez was next to Shante when he arrived. He said that Perez was "quiet" and that when the officer questioned him "he was not shouting or yelling or . . . outwardly hysterical; but he was, you know, shaken up, just trying to remain calm. He looked a little flushed . . . looked nervous but, again, not agitated." The officer said that Perez "spoke haltingly . . . but he was able to speak." Perez did not testify.
The evidence showed that at the time of the threats that Perez showed fear, that Perez said that he was afraid for his children, and that even after the police had arrived and the witnesses were being interviewed, Perez was still "shaken up." Given the deferential standard of review, we believe that on this record a rational trier of fact could find that Perez experienced fear for a period of time that extended beyond what is momentary, fleeting, or transitory.
Huber -- The Telephone Call
Appellants contend, "Appellant's judgment must be reversed because there was no substantial evidence that Huber experienced sustained fear as a result of the telephone call made between March 29 and March 31, 2005 as alleged in count 3."
The voice that called Huber near the end of March said, "People that talk, wind up in graves." The man said, "You got a nice house, nice kids. You don't want to lose them. . . . Do the right thing. You don't want to wind up dead." Huber understood that by "talk" the caller meant "testify." When asked if he took this call as a threat to his safety, he answered, "Absolutely." Huber said that he considered the call a threat to his safety, that of his family, and that of Justin Perez and his family. However, he testified that he did not immediately report this call to the police "[b]ecause until what happened later, I just thought it was all B.S." He said, "I didn't give it much merit until the firebombing." When the Perez home was firebombed, Huber told the police about the call. Huber testified that he felt fear for his safety and that of his family and that, as of the time of his testimony at trial, he was still in fear for his safety, that of his family, and that of the Perez family.
Jesse Adams argues, "The question in the instant case is whether Huber's delayed fear, the fear he experienced one week later when Jose Perez's house was firebombed, constitutes 'sustained fear' within the meaning of section 422. The language of the statute itself requires the conclusion that delayed fear fails to satisfy its sustained fear element, by its emphasis on temporal immediacy in connection with the fear." Appellant Eric Adams argues that "the fear engendered was not due to the statement, but due to the conduct . . . though later conduct may inform whether the declarant intended a statement to be a threat at the time it was made (People v. Solis (2001) 90 Cal.App.4th 1002, 1013-1014), such later conduct cannot instill retroactive fear." Respondent argues, "It may have taken the firebombing of the Perez house to trigger Huber's report to police that he, too, had been the object of continued terrorism related to his witnessing of the events of August 23, 2004, but that delay neither invalidates his testimony that he was frightened by the telephone call, nor renders his fear unreasonable."
People v. Solis considered whether a threat that may not initially create sustained fear but does so when the threat is followed by subsequent action qualifies under section 422. In Solis, the defendant left a series of messages on his ex-girlfriend's answering machine threatening that he was driving to her home to set fire to it and to kill her. (Solis, supra, 90 Cal.App.4th 1002, 1009.) The court held that the defendant's conduct after the verbal statement-setting fire to the ex-girlfriend's apartment building using an accelerant thrown through the ex-girlfriend's bedroom window-could be considered in determining whether a criminal threat was made. The court stated, "[I]t is clear a jury can properly consider a later action taken by a defendant in evaluating whether the crime of making a terrorist threat has been committed. . . . The point is that all of the circumstances can and should be considered in determining whether a terrorist threat has been made. It therefore follows that the court, in response to the jury's questions, properly informed the jury that the threatening statement does not have to be the sole cause of the victim's fear and that a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by a defendant." (Id. at p. 1014.)
There is no question that the words used during the telephone call here qualified as a threat. The surrounding circumstances support that view and the language of the threat makes clear that it was intended as such, conveying a gravity of purpose and an immediate prospect of execution. Although Huber did not report it to the police until after the firebombing, he did testify that he was placed in fear at the time he received the threat. He thought enough of it to try calling the Leonard Hodge number that had called him earlier, and found the voice that eventually answered at that number to be the same one that had issued the threat. However, even if Huber's fear did not fully ripen until the firebombing of the Perez home, it was the phone threat which caused him to be in fear for his own safety and that of his family. That fear continued as of the time he testified at trial. The duration of Huber's fear from the point at which he understood, because of appellants' subsequent action, that the threat which had been conveyed to him was not "all B.S.," until he testified at trial supports the element that Huber experienced sustained fear. There was substantial evidence as to count 3.
Effective Assistance of Counsel
Appellants contend that they received ineffective assistance of counsel when counsel failed to object to certain evidence. "To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. [Citation.]" (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
" ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation] . . . [.] '[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. . . ." ' [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 86, quoting People v. Jones (2003) 29 Cal.4th 1229, 1254.)
"An appellate court's ability to determine from the record whether an attorney has provided constitutionally deficient legal representation is in the usual case severely hampered by the absence of an explanation of an attorney's strategy." (People v. Weaver (2001) 26 Cal.4th 876, 955.) Thus, "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
"Whether to object to arguably inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference, failure to object seldom establishes counsel's incompetence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 415-416.) " ' " 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " ' [Citation.]" (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 86, quoting People v. Jones, supra, 29 Cal.4th at p. 1254.)
The Jail Recordings
Eric Adams contends, "Appellant's judgment must be reversed because trial counsel was ineffective in failing to object to the lack of foundation for the admission of key prosecution evidence." Jesse Adams joins.
Background
Deputy James Kirkland testified that he was a classification officer at the main jail for the Santa Clara County Department of Corrections. He said that he "handle[s] all the phone monitoring." He said that when someone requests a recording of a telephone call, Kirkland "input[s] the information into the computer and give[s] them the telephone calls that they have requested." He explained that all telephone calls and visits within the jail are stored as audio files. He testified that all calls from the jail are "automatically" recorded and stored as digital recordings "on the hard drive of the computer." Kirkland identified a CD, People's Exhibit 3, as a "CD of jailhouse telephone calls prepared by the Santa Clara County Department of Corrections" that contained audio files that were "true and accurate recordings of telephone calls placed from the jail to the outside." Kirkland testified that he was custodian of records for the telephone recordings database at the jail, that the CDs were prepared in the ordinary course of business, and that they were prepared in such a manner as to ensure the accuracy of the data contained on them. He identified the CDs introduced into evidence specifically by their serial numbers which corresponded to the date and time of the call and the number called. He acknowledged on cross-examination that although he could not recognize the voices on the CDs he could attest to the accuracy of the CDs because "the disk has all the information that a classification officer would place on the disk. When I placed the disk inside of the computer, I was making sure that there was the same information that was on the call detail sheet was the information on the – the icons and information was that – was in the disk itself."
Because the CDs Kirkland testified about contained "numerous recordings of jailhouse phone conversations," the prosecutor prepared a separate CD himself by copying on to a blank CD the audio files that he planned to play for the jury with the understanding that that would be the CD that would accompany the jury into the deliberation room. Agent Montiel identified the voices of Eric Adams, Jesse Adams, and Shante Adams on the recordings. Jesse Adams testified about the jail recordings, "Some of this conversation is like put wrong. He just must have put what he wanted to put, because some of this is like the format is put wrong."
Discussion
A "writing" must be authenticated before it may be received in evidence. (Evid.Code, § 1401, subd. (a).) A "writing" includes a CD or tape recording. (Id., § 250.) "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is . . . ." (Id., § 1400.) Thus, a writing is authenticated "by testimony or other evidence 'that it accurately depicts what it purports to show.' [Citation.]" (People v. Mayfield (1997)14 Cal.4th 668, 747.)
Eric Adams contends, "Trial counsel's failure to object to the lack of foundation for the recorded telephone conversations was prejudicial." He argues, "Insufficient foundation had been laid for the recordings, and as a result, they were irrelevant and inadmissible." Eric Adams notes, "After burning the disc, neither [Kirkland] nor any classification has any knowledge of what the requesting party may do with it. Kirkland did not describe how the recordings were made, where the originals were stored, how the copies were transferred, or whether all machinery was in good working order on the relevant days. No foundational objection was made." Appellants argue, "In order to establish that the audio recordings are what the prosecutor asserted they were, testimony by the personnel who caused the content to be recorded is necessary. That testimony must establish the mechanism by which the recording is made and its reliability . . . ."
Whether or not the CDs were properly authenticated by Kirkland's testimony, there is no reason to believe that the prosecutor would have been unable to cure any foundational deficiency. Such evidence is routinely admitted. This was, after all, the phone system in a county jail with the recordings made by county personnel. There is nothing in the record to suggest that the prosecution would be unable to establish how the recordings were made, where the originals were stored, how the copies were transferred, and that all machinery was in good working order on the relevant days. Kirkland was the last witness of the day. Defense counsel may have known that, had an objection been interposed, the prosecution would have produced additional witnesses the next day to establish in greater detail the mechanics of storing and transferring the audio files and the condition of the equipment involved. Appellants recognize that "it may be a valid tactical choice to forgo an objection if it may alienate the jury" but argue that this need not be considered here because "Any question of foundation would have been best addressed outside the presence of the jury under Evidence Code sections 402 and 403." However, trial counsel may have known that such a foundation could be established and that interposing and litigating an objection to a lack of foundation would be time consuming and ultimately fruitless. Affording substantial deference to counsel's choice as to whether to object to arguably inadmissible evidence, we must reject appellants' claim of ineffective assistance for not objecting to a lack of foundation for the recordings.
Dog Sniffing Testimony
Eric Adams contends, "Trial counsel's failure to object to the lack of foundation for the accelerant-sniffing dog testimony . . . was prejudicial." He argues, "In the absence of a sufficient foundation for the accelerant-sniffing dog testimony, including its scientific reliability, the evidence was inadmissible." Jesse Adams joins.
Background
Dennis Johnsen testified that he was "the Supervising Arson Explosive Investigator for the Santa Clara County Fire Department." He had worked in this field since 1990 and had "well over twelve hundred hours" of training. The parties stipulated that Johnsen was "an expert in the investigation of fires." As part of his duties, he was a "canine handler" for a yellow Labrador Retriever named "Rosie." Rosie was certified by the "Bureau of Alcohol, Tobacco and Explosives" and was a "Ignitable, Flammable Liquid Detection Canine." Johnsen testified that Rosie had been trained to detect "light, medium, and heavy petroleum distillates: gasoline – pretty common things that are used – alcohol, fuel, white gas, kerosene, paint thinners, pretty much anything that you could start a fire with." Rosie had worked on over 200 fires.
Johnsen testified that on April 24, 2005, he took Rosie to the tow yard to the white Chevrolet. The car doors were closed and the windows were up. Johnsen had Rosie examine the interior of the car and she alerted in two different areas inside the car, on a pink cloth in the front passenger seat and the carpet on the rear passenger side of the car. Parts of these areas were sent to the county crime laboratory and tested for ignitable liquid residue using "head space and passive charcoal absorption techniques" and analyzed using "gas chromatography with flame ionization and mass spectrometry." These tests failed to detect any ignitable liquid.
Johnsen was asked to explain how Rosie could alert to these areas when laboratory analysis could not detect any substance. Johnsen explained that an accelerant will evaporate over time. He said, "The canines can detect one part per billion, and the instruments in the crime lab can only detect one part per . . . million. So the dogs' noses are a lot more sensitive than the instruments in the crime lab. [¶] So if a substance has evaporated enough to where they can detect it, we collect it and send it to the lab. The lab's analyses have to meet a certain threshold for them to say a 100 percent this is the certain type of substance. That's not always there because the canines can detect something that won't meet that threshold because their noses are a lot more sensitive than the equipment, if that makes sense." Johnsen was asked how the one-part-per billion figure was determined. He said that the "ATF" had done "extensive testing" with the dogs. He said, "Honestly, I can't answer that question because I don't know how they do the testing. So that's what I was told when we were training. That's what the people at the crime lab have told me." Johnsen said that Rosie was re-certified every year. He said, "the test, the recertification, is done by the ATF back in Maryland, which is their main lab. It's all super-duper top-secret, what they use." Johnsen testified that Rosie had "passed 100 percent of all her tests."
The trial court instructed the jury, "You have received evidence about the use of a dog that has training in detecting accelerants. You may not conclude the defendant is a person who committed the crime based only on the fact that a dog indicated the presence of an accelerant. Before you may rely on dog sniffing evidence, there must be evidence of the dog's general reliability. [¶] In deciding the meaning and importance of the dog sniffing evidence, consider the training, skill, and experience, if any, of the dog, its trainer, and its handler together with everything else that you learned about the dog's work in this case."
Discussion
Appellants point to Johnsen's testimony that Rosie could alert on petroleum distillate accelerants and that Johnsen had no personal knowledge that Rosie's nose was more sensitive than the lab equipment but that he had been told this by the ATF trainers. Appellants observe that "no foundation or Kelly/Frye objection was made" and argue that this testimony was inadmissible and counsel was ineffective for failing to object to it. Respondent offers no discussion of this issue.
Under the "Kelly-Frye " doctrine, based on People v. Kelly (1976) 17 Cal.3d 24 and on Frye v. United States (D.C.Cir.1923) 293 F. 1013, the federal appellate court decision on which it relied, evidence obtained through a new scientific technique is admissible if its reliability is established under a three-pronged test. "First, there must be proof that the technique is considered reliable in the scientific community. Second, the witness testifying about the technique must be a qualified expert on the subject. Third, there must be proof that the person performing the test used correct scientific procedures." (People v. Willis (2004) 115 Cal.App.4th 379, 380.) The United States Supreme Court subsequently held that Frye was superseded by the Federal Rules of Evidence, and the doctrine is now referred to as the Kelly rule. (People v. Bolden (2002) 29 Cal.4th 515, 545.)
Although the reliability and admissibility of evidence of dog tracking is analyzed using the factors enumerated in People v. Malgren (1983) 139 Cal.App.3d 234, other evidence obtained through the use of dogs may be considered to be not generally accepted in the scientific community and thus may be required to undergo a Kelly inquiry to determine the reliability of the technique. For example, People v. Mitchell (2003) 110 Cal.App.4th 772 held that a scent lineup involving discrimination between scents that had been transferred onto scent pads with a scent transfer unit was subject to Kelly analysis. Appellants argue, "the reliability of accelerant-sniffing dogs generally has not been established through case law."
We note that here the testimony about canine detection of an accelerant, without laboratory confirmation, was offered not just to support an expert's opinion that a particular fire was arson, but rather as substantive proof of the presence of an accelerant. Our ability to determine whether defense counsel provided deficient representation here is hampered by the lack of an explanation in the record. Defense counsel interposed a number of objections during the prosecution's direct examination of Johnsen but, at a sidebar conference, offered to stipulate to the witness's expertise "so he can be asked hypothetical questions." The record sheds no light on why counsel did not object on Kelly/Frye grounds to Johnsen's testimony. We are not prepared to assume that such an objection would have ultimately been sustained. However, even if the testimony about Rosie alerting to the accelerants and the sensitivity of Rosie's nose compared to laboratory tests had been excluded, it is not reasonably probable that a result more favorable to appellants would have resulted. The jail recordings established that on March 23, 2005, Jesse told Eric that "the situation" was going to proceed by Shante taking him to "where it's located." On March 27, Eric called Shante and told her "you're going to drive him there" and that Jesse told Eric that "something would happen by the weekend" that would be "real thug shit." It was clear that the firebombing of the Perez home was arson. Testimony established that as Perez put out the fire, he saw a car driving past his home that matched the description of Shante's car which he had seen Eric driving in August 2004.
People v. Acri (1996) 277 Ill.App.3d 1030 (662 N.E.2d 115), involved the use of accelerant-sniffing dogs at the scene of a fire. The appellate court affirmed the decision by the trial court to bar the prosecution evidence which would have showed the dog "alerted," thereby indicating that it had detected the presence of an accelerant at the scene of the fire. The court noted that no general acceptance of the reliability of uncorroborated alerts exists in the field of arson investigation. "While dog handlers believe that canine alerts are more reliable than laboratory tests, chemists and other investigators are more skeptical of the dogs' abilities." (Id. at p.1034.)
Immediately after the arson, Eric repeatedly ordered to Shante to "make the stars go away" and "to wash the car to vacuum the car inside and out and to change the floor mats." When Shante told Eric that her car had been impounded, he asked Shante if she had washed the car "like he had suggested." Eric told Shante "you know if you have any evidence in your car of what you did, you're going to jail." Even in the absence of evidence about the accelerant sniffing dog, it is not reasonably probable that the result of the proceeding would have been different.
Expert Testimony about "Street Lingo"
Eric Adams contends, "Appellant's judgment must be reversed, because the prosecutor was permitted, over defense objection, to introduce opinion evidence regarding appellant's use of 'street lingo.' " He argues, "The evidence of appellant's conversations with Jesse and Shante did not require expert opinion to interpret it." Jesse Adams joins.
Background
During in limine motions, appellants objected to "parole agent Montiel testifying as an expert as regards to the meaning of the conversations" between appellants in the recorded phone calls. The court said, "This is slightly different than his expertise. This goes more towards how does Mr. Montiel know what the conversations really meant. How do you get in the minds of the declarants?" Counsel for Eric Adams said that permitting Montiel to testify as an expert witness was "like putting lipstick on a pig."
Before being qualified as an expert witness, Agent Montiel testified about having listened to the recordings of Eric's phone calls from the jail. He was asked, "when [Eric] talks about his court case, does he always speak in a normal way that people speak who are attempting to be clear with each other?" Defense counsel objected that "the recordings speak for themselves" and that the question was "asking a lay person an expert opinion." The prosecutor argued that "this particular question would call for a lay opinion; namely, whether people are speaking clearly or not." The objection was overruled and Montiel testified that Eric used "ambiguous language in order to talk about his case." Later, the prosecutor wanted to ask Montiel "about some specific terms" used "on the street . . . which normal people might not understand." During voir dire on Montiel's expertise in this regard, Montiel testified that he was a parole agent and had formerly been a prison guard for seven years and had spent most of that time on death row. He had not testified before as an expert on street language. He had not read any books "specifically about street language." He had not read any books about "Ebonics." He had not attended any lectures or classes on the subject of "street language." He had, however, read books and articles written by former inmates that used "terminologies that are commonly used in the prison setting or the street setting." He testified that his understanding of certain words was based on his training and experience and the "terminologies that I've experienced and I encountered." Montiel testified that he had a "lengthy discussion" with the prosecutor about the jail phone call recordings and that the prosecutor had prepared an outline, from which Montiel was testifying, concerning the meaning of certain terms. The trial court deemed Montiel an expert witness "in the area of interpreting street lingo or jail lingo."
Montiel then testified about the meaning of certain words in the recorded phone calls and the letters. He said that a "kite" or a "bruwer" is a letter. He said that to "blast" meant to send someone a letter. He said that a "mark" is a target and to "check someone" meant "to put them in check and straighten them out for whatever reason that they were not acting appropriately or acting otherwise." Montiel testified that to "holler at" someone meant "to yell at, to speak to, a form to speak to somebody regarding an issue." He said that as "a fad," promoted by the "rapper Snoop Dog" or in an attempt "to disguise a word," some speakers insert the syllables "izz" and "eez" within a word, so that the word "car" becomes "ceezar." Montiel was asked about one phone call in which Eric asked Jesse what was going to happen and Jesse told him it would be "like Pac does, real thug shit." Montiel explained that "Pac" was a reference to "Tupac Shakur, who was a rapper who rapped about guns, violence, [and] gang[s]."
During in limine motions, it was discussed that "bruwer" was a Swahili word and the court observed that it "really means a letter and that everybody in jail knows it, and that we all know that as attorneys, but that the jurors wouldn't know that."
Montiel testified that during a conversation between Eric and Jesse, when Eric expressed concern about his pending case, Jesse's response that "it's going to be all gravy" meant that "something is going to be great, something is going to be good."
Discussion
Eric Adams asserts, "There is no precedent for admitting expert testimony regarding 'street lingo.' " He argues, "the jurors, ordinary people with ordinary ranges of experience, were capable of discerning whether the conversations were ambiguous or straightforward." He states, "Officer Montiel was not qualified to provide an expert opinion interpreting the conversations." He argues, "The prosecutor's proffer of his 'expert' testimony was merely an attempt to place improper non-expert testimony interpreting the conversations in front of the jurors and usurp their role of listening to the tapes and determining what was said." Jesse Adams joins, and argues that "Montiel made it clear in his testimony that he was not testifying from any independent recollection of the content of the audiofiles. . . . Montiel denied that he had testified from his knowledge of what he heard on the audiofiles or read in the transcripts, but rather he had testified 'based on the outline [the prosecutor] had prepared.' "
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid.Code, § 720; see also People v. Bolin (1998) 18 Cal.4th 297, 321.) "An expert is permitted to offer an opinion on 'a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (People v. Mayfield (1997) 14 Cal.4th 668, 766, quoting Evid.Code, § 801, subd. (a).) An expert is "sufficiently qualified if 'the witness has sufficient skill or experience in the field so that his [or her] testimony would be likely to assist the [trier of fact] in the search for the truth.' " (People v. Mayfield, supra, 14 Cal.4th at p. 766, quoting Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) "The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] That discretion is necessarily broad: 'The competency of an expert "is in every case a relative one, i.e. relative to the topic about which the person is asked to make his statement." [Citation.]' [Citation.] Absent a manifest abuse, the court's determination will not be disturbed on appeal. [Citations.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) " ' "Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility." ' " (People v. Bolin, supra, 18 Cal.4th at p. 322, quoting Seneris v. Haas (1955) 45 Cal.2d 811, 833.)
Here, the trial court could conclude that Montiel's experience as a prison guard and a parole officer qualified him as a expert on the slang terms that are used by the people he encountered in that environment. The meaning of words such as "bruwer" or "kite" as used in street lingo was beyond jurors' common experience and therefore was a proper subject for expert testimony. (Evid.Code, § 801, subd. (a).) To the extent that the use of other terms, such as a "mark" or "to holler" at someone, might have been part of the common experience of most jurors, appellants do not argue that Montiel's definitions were incorrect. That Montiel referred to an outline prepared in consultation with the prosecutor is unremarkable and simply an efficient way to structure his testimony.
Appellants argue, "Montiel's testimony is analogous to expert testimony on credibility. Montiel was effectively testifying that appellants did not mean what they were saying. In other words, they were lying." Montiel did not usurp the jury's role of listening to the tapes and determining what was said. The tapes were played for the jurors, transcripts were provided to them, and both appellants testified about the conversations. Montiel testified, before being qualified as an expert on street lingo, that Eric used "ambiguous language in order to talk about his case" during the phone calls. But Montiel did not testify about appellants' credibility. He did not say that they were lying, that is, that appellants did not mean what they were saying in the recordings. Rather, his testimony was that they were not saying what they were meaning. No one could listen to these recordings and think otherwise. In the recorded conversations, during the passages that the prosecutor argued were relevant to the conspiracy charges, the parties' tone and delivery switched dramatically from a breezy, free-flowing discussion of everyday events to a much slower, hesitant, and guarded one filled with long pauses. During these passages, the speaker repeatedly asked the listener, in one way or another, whether he was being understood. It is this change in tone, from forthcoming to cagey, from open to reticent, more than any use of "street lingo," which indicated that the topic had changed from one concerning trivial matters to something much more serious, compelling one to "speak on it cleverly." The trial court did not abuse its discretion in admitting Montiel's testimony and appellants were not denied due process.
Conspiracy/Unanimity
Eric Adams contends, "Appellant's judgment must be reversed because the court failed to instruct the jury that it must determine the number of conspiracies proved." He argues, "Since the evidence in this case would have supported a finding of a single conspiracy, the trial court erred in failing to instruct the jurors that they must unanimously agree on the number of conspiracies." We agree.
Jesse Adams does not join in this argument. He observes that he was charged with a single conspiracy for conduct on or between March 21, 2005 and April 11, 2005, by conferring over the phone to intimidate Huber and threatening Huber by phone by and between March 29 and March 31, 2005. He states, "Any ensuing conviction of Jesse Adams for a single all-encompassing conspiracy going beyond that time frame to include other conduct would have constituted conviction of an uncharged greater crime in violation of his federal and state constitutional rights to due process."
The information charged Eric Adams with two counts of conspiracy. Eric and Jesse were convicted in count 4 with conspiracy to commit a violation of section 136.1 for the threatening phone call to Huber between March 21 and April 11, 2005. The two overt acts alleged were Eric and Jesse conferring over the phone about dissuading Huber from testifying and Jesse calling Huber and threatening to harm him if he testified. Eric was convicted in count 7 with conspiracy to commit a violation of section 136.1 between March 21 and April 26, 2005. The overt acts alleged in support of this charge were Shante driving to the Perez home to transport a firebomb and Eric and Shante discussing over the phone the need to clean Shante's car.
The trial court instructed the jury, "Defendants Eric Adams and Jesse Adams are charged in Count 4, and Eric Adams is charged in Count 7, with conspiracy to commit witness intimidation. [¶] There may be no conspiracy. There may be one conspiracy. There may be more than one conspiracy. If you find there was more than one conspiracy, you must keep the conspiracies separate in your analysis of guilt. For example, if you find there were two conspiracies, you must be careful to not use the evidence of the first conspiracy in your analysis of the second conspiracy unless you find that the conspirators in the first conspiracy were also conspirators in the second conspiracy." The trial court instructed the jury as to conspiracy with CALCRIM Nos. 415 (conspiracy), 417 (liability for co-conspirator's acts), 418 (co-conspirator's statements), 419 (acts committed or statements made before joining conspiracy), and 420 (withdrawal from conspiracy).
Eric Adams argues, "the trial court was required to instruct the jurors they must determine whether there was a single conspiracy involving multiple objectives – to dissuade two witnesses – or multiple conspiracies. The court's comments that there may be none, one or more conspiracies did not inform the jurors they must make that determination. Instead, the jurors, confronted with two verdict forms, simply made two separate findings . . . ."
In Braverman v. United States (1942) 317 U.S. 49 (63 S.Ct. 99), the defendants were charged with multiple counts of conspiracy based on an agreement that would entail violating statutory restrictions on the manufacture, transportation and distribution of liquor. (Id. at p. 51.) The United States Supreme Court explained that "when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." (Id. at p. 53.)
In People v. Vargas (2001) 91 Cal.App.4th 506, this court stated, "In a conspiracy, 'the gist of the offense is the unlawful agreement between the conspirators to do an act contrary to law, accompanied by an overt act to at least start to carry the conspiracy into effect.' [Citation.]" (Id. at p. 552.) This court said, "A trial court is required to instruct the jury to determine whether a single or multiple conspiracies exist only when there is evidence to support alternative findings." (Id. at p. 554.)
Cited by appellant, yet ignored by respondent, is People v. Jasso (2006) 142 Cal.App.4th 1213, in which this court said, "Specifically, an instruction is warranted where the evidence could support a finding that there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy." (Id. at p. 1220.) In Jasso, the defendant was convicted of three counts of conspiracy to transport a controlled substance into prison and two counts of transporting a controlled substance into prison. The defendant, an inmate, made phone calls, which were recorded, to an associate outside of the prison to attempt to import drugs on three separate occasions, using three different women, during the same narrow time frame. On appeal, defendant contended that the trial court failed to instruct the jury sua sponte to decide whether there was one overall conspiracy or multiple conspiracies. He argued that the evidence could have supported a finding that he and his associate had a general, all-inclusive conspiracy aimed at achieving a single, unlawful result: smuggling drugs into prison. This court agreed. We rejected the counter-argument that because the defendant had conspired with different people on separate plans to import various drugs on different occasions and in different manners that three separate conspiracies were not tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result. We said that "a conspiracy can have multiple criminal objectives. Consequently, if the jury determined that there was but one general plan or agreement, the fact that defendant attempted to commit three crimes, that is, that he attempted to import drugs on three separate occasions, using three different women, would not automatically or necessarily convert a single agreement into three separate conspiracies." (Id. at p. 1222.)
As respondent sees it, "Eric conspired with his brother to intimidate the witnesses by delivering threatening messages . . . . Separately, Eric conspired with his wife to carry out the intimidation of the witnesses by making an example of the Perezes and firebombing their home. Neither the brother nor the wife were involved in one another's plan. . . . While it appears that both conspiracies had the object of witness dissuasion in general, the directly affected victims were different." Respondent asserts, relying on People v. Liu (1996) 46 Cal.App.4th 1119, 1133, that, "Separate planned acts of threat or violence directed at separate victims by perhaps overlapping, but not congruent, groups of conspirators are separate conspiracies."
In Liu, the court held that a conspiracy to commit several murders could be charged in separate counts even if pursuant to a single objective. (Liu, supra 46 Cal.App.4th atp. 1133.) The court noted that "a conspiracy to commit several murders is a more serious wrong than a conspiracy to commit a single murder," thus warranting treatment as multiple conspiracies. (Ibid.) The court acknowledged the rule that, "where the evidence shows that a group of conspirators agreed to commit a number of different crimes incidental to a single objective, there is only one conspiracy." (Ibid.) The court merely recognized an exception to this rule "where the several different criminal acts are separate murders of different individuals." (Ibid.) This exception has not been applied outside this context. (See People v. Davis (1989) 211 Cal.App.3d 317, 323 [solicitation to commit multiple murders]; cf. Vargas, supra, 91 Cal.App.4th at p. 556.)
As in Jasso, we must conclude that the evidence here could have supported a finding that Eric, with Shante and Jesse, had a general, all-inclusive conspiracy aimed at achieving a single, unlawful result: thwarting the pending criminal proceedings against Eric by intimidating the witnesses. The jury should have been directed to decide the factual issue that would have been posed by the omitted instruction. This instructional omission was not harmless. Although respondent argues in this portion of respondent's brief that there were two separate conspiracies, in another portion of respondent's brief respondent states that "the evidence clearly shows the conspiracy was broader than the making of a single telephone call. . . . [T]he conspiracy was to commit witness intimidation, not merely to intimidate one particular witness." Accordingly, we must reverse the judgment for the instructional error as to counts 4 and 7.
CALJIC contains an instruction, CALJIC No. 17.05, for which there does not appear to be a direct corollary in CALCRIM. CALJIC No. 17.05 would have told the jury, "The defendant is accused of committing the crimes of conspiracy in counts 4 and 7. [¶] After determining all of your verdicts according to my instructions, you should sign all verdict forms on which you unanimously agree. If you have found the defendant guilty of more than one count of conspiracy, you must then determine whether there was one overall conspiracy to commit two crimes, or whether there were separate conspiracies. You should consider all of the applicable evidence and determine this issue. [¶] When a single agreement to commit one or more crimes is evidenced by an overt act, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objectives. Whether the object of a single agreement is to commit one or many crimes, it is in either case the agreement which constitutes the crime. One agreement cannot be taken to be several agreements and hence several conspiracies simply because it envisions committing more than one crime. [¶] However if you find beyond a reasonable doubt that there was not one overall agreement, but separate agreements, each accompanied by an overt act, then separate conspiracies have been established. [¶] If you find the defendant guilty of more than one count of conspiracy, you will then include a finding as to whether there is one overall conspiracy or separate and distinct conspiracies."
We note that the sentence on count 7 was stayed.
Sentencing
Background
On July 21, 2006, the trial court sentenced Jesse Adams on counts 1, 3, and 4, to a state prison term of 30 years plus 75 years to life. This represented three consecutive terms of 25-years-to-life under the three strikes law, and six five-year terms for section 667, subdivision (a), serious felony prior conviction enhancements. The trial court stayed an additional three section 667, subdivision (a), enhancements and two enhancements under section 667.5, subdivision (b). The trial court struck the additional punishment for section 667.5, subdivision (b), prior prison terms under section 1385.
On July 28, 2006, the trial court sentenced Eric Adams to 24 years. This represented an eight-year term, on count 1 (the upper term of four years, doubled under the three strikes law to eight years), a six-year consecutive term on count 6 (mid-term of three years, doubled) a four-year consecutive term on counts 11 through 13 (1/3 of the mid-term of two years, doubled, for each count), a five-year consecutive term for a section 667 enhancement, and a one-year consecutive term for a section 667.5, subdivision (b) enhancement. For counts 14 and 15, the misdemeanor counts, the trial court imposed one-year concurrent county jail terms.
On March 9, 2005, Shante Adams entered a plea of no contest to one felony count of witness dissuasion, one misdemeanor count of conspiracy and one misdemeanor count of unlawfully causing a fire to an inhabited structure, with the understanding that she would be sentenced to serve 12 months in jail. (Pen. Code, §§ 136.1, subd. (c)(1), 182, subd. (a)(1), 452, subd. (b).)
Section 654
Jesse Adams contends that "multiple punishments imposed for counts one, three, and four violate section 654." He argues, "The consecutive sentences imposed on counts one and three violate Penal Code section 654's bar against multiple punishments for the same words and conduct committed with the same intent and objective."
Jesse Adams was charged in count 1 with attempting to dissuade a witness by threat of force, and in count 3 with making a criminal threat. Count 4 charged conspiracy to commit witness dissuasion. In closing argument, the prosecutor explained, "In count 1, we have charged witness intimidation by threat. And that count relates to the threats of Christopher Huber by Jesse Adams over the phone. . . . In Count 3, we have charged criminal threats, and, again, that count relates to the phone call which Jesse Adams placed to Christopher Huber." At sentencing, defense counsel argued that "all of the counts did occur on the same occasion as far as Jesse Adams [is] concerned and the set of operative facts were on the same occasion. And I think consecutive sentencing is not appropriate because these acts are one and the same. The same acts were in the overt acts in the conspiracy charge and the same act, same phone call for the 136 and the same act and same call for the 422 and the same act and same call in the conspiracy charge." Nevertheless, the trial court sentenced Jesse Adams on count 1 and imposed consecutive sentences for counts 3 and 4.
Although the trial court stated no reasons for its sentencing choices with respect to Jesse Adams's sentencing, when Eric Adams was sentenced the following week, the trial court sentenced Eric Adams on count 1 and stayed punishment on count 3 "pursuant to section 654." The court also stayed punishment on the conspiracy count, count 4, "pursuant to 654 of the Penal Code. Counts 1 through 4 all relate to the phone call to victim Huber." This was consistent with the recommendation in the probation report in Eric Adams's case. The sentencing memorandum filed by the prosecutor for use during that sentencing hearing stated that Eric should be sentenced to an aggravated term on count 1 and that sentence for count 3 should be "stayed under PC 654." The memorandum stated that sentence on the conspiracy count, count 4, also should be stayed under section 654.
The probation reports here were prepared by the same probation officer. The report for Jesse Adams stated, "As all counts did not occur on the same occasion nor stem from the same set of operative facts and absent any apparent Section 654 of the Penal Code issues, consecutive sentencing is appropriate." The report prepared for Eric Adams states "There would appear to be Section 654 of the Penal Code issues, . . . which would warrant a stay on sentence imposition on identified counts." The report identified the counts in question here as the ones for which section 654 would be applicable.
Penal Code section 654, subdivision (a) states in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Because of the prohibition against multiple punishment in section 654, a defendant may not be sentenced 'for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense.' [Citations.] Thus, punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation]. Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses. [Citations.]" (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616, fn. omitted, disapproved on other grounds in People v. Russo (2001) 25 Cal.4th 610,. 1137, accord, In re Cruz (1966) 64 Cal.2d 178, 180-181.) Thus, for example, a defendant may not be punished for both murder and conspiracy to commit that particular murder (People v. Hernandez (2003) 30 Cal.4th 835, 866), but he may be punished for both offenses where the evidence shows a conspiracy to kill not only the particular person who was the victim of the substantive offense, but other persons as well. (People v. Vargas (2001) 91 Cal.App.4th 506, 570-571.)
Jesse Adams argues, "The sentence separately punishes appellant for dissuading a witness by use of threat of force (count one) and criminal threat (count three), based on the same single act." "Both the criminal threat and dissuasion by threat of force were incidental to the objective of dissuading Huber from testifying. Hence, section 654 applies to bar punishment for more than one of those offenses."
Respondent argues, "While it is usually the case that a defendant cannot be separately punished both for the conspiracy and for the crime that is the object of the conspiracy (see People v. Ramirez, supra, 189 Cal.App.3d at pp. 615-616), here the evidence clearly shows the conspiracy was broader than the making of a single telephone call. . . . [T]he conspiracy was to commit witness intimidation, not merely to intimidate one particular witness." Respondent states, "We acknowledge that one of the overt acts involved this taped jailhouse discussion between the brothers about the threatening contact with Huber, which Jesse Adams had just completed, but the content of that discussion proves the conspiracy included far more than the objective of dissuading just witness Huber."
We agree with Jesse Adams that the trial court's decision to stay sentence under section 654 for Eric Adams's convictions for dissuading a witness, criminal threats, and conspiracy to dissuade "strongly imply the court made the factual determination that the offenses charged in counts one through four were a single indivisible course of conduct." We agree with the trial court's statement when sentencing Eric Adams that counts 1 through 4 "all relate to the phone call to victim Huber." We agree with the probation officer's conclusion that these counts are subject to section 654. We accept the concession by the prosecutor in his sentencing memorandum filed in Eric Adams's case that section 654 applied to counts 1 through 4. We see no basis for not applying these same analyses in sentencing Jesse Adams on these same counts.
We conclude that the trial court erred by sentencing consecutively on counts 3 and 4. Under these circumstances, the proper appellate response is to leave undisturbed the sentence imposed on count 1 and stay execution of sentence on the two terms imposed consecutively to the count 1 sentence. (People v. Dominquez (1995) 38 Cal.App.4th 410, 420.) We will do so. Accordingly, we will stay execution of sentence on counts 3 and 4.
Jesse Adams contends, "The trial court imposed consecutive sentences based on facts not found by a jury beyond a reasonable doubt, in violation of appellant's constitutional right to a jury trial and proof beyond a reasonable doubt. (6th & 14th Amends.)" Appellant relies on Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296, 300. After appellant's opening brief was filed, our Supreme Court addressed the application of these cases to consecutive sentencing in California and rejected appellant's argument. (People v. Black (2007) 41 Cal.4th 799, 821.) This court is bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Upper Term Sentencing
In sentencing Eric Adams for count 1, the trial court imposed an eight-year term based on the upper term of four years, doubled under the three strikes law to eight years. The court said that it was imposing the upper term "because of the planning involved and the planning that had a cooling off period pursuant to [California Rule of Court] factor 4.421 [subdivision (a)(8)]. Also, the defendant's poor performance on probation or parole previously has been unsatisfactory, that is factor 4.421, subsection [(b)(5)]." Appellant Eric Adams contends that his sentence must be set aside because the upper term sentence was unconstitutional under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348], and Blakely v. Washington (2004) 542 U.S. 296, 300 [124 S.Ct. 2531]. He argues, "In rendering judgment, the court relied on facts which had not been charged in the indictment. In addition, the court failed to employ the standard of proof beyond a reasonable doubt."
Appellant argues that Apprendi-Blakely-Cunningham error is structural and per se reversible because the aggravated term was imposed based on findings by a preponderance of the evidence rather than beyond a reasonable doubt. However, the primary violation involved a defendant's right to a jury trial and not the court's use of the incorrect burden of proof in making findings that the jury should have made. Accordingly, we reject this claim.
As is now familiar, Apprendi declared: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) Blakely applied the rule of Apprendi to the State of Washington's determinate sentencing law and concluded that the defendant's constitutional rights had been violated because the state judge had imposed a sentence greater than the "statutory maximum" as the result of judicial fact-finding. (See Blakely, supra, 542 U.S. at pp. 303-305 [" 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant"].) Most recently, the United States Supreme Court held that California's determinate sentencing law,"by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].)
In this case, Eric Adams maintains, "In view of the sentencing court's finding of aggravating factors by a lower standard of proof and without proper notice, the court's selection of the upper term was tainted by Blakely error and renders appellant's sentence unconstitutional." He argues that the "prior conviction exception" under Apprendi "is read very narrowly and applies only to the mere fact of a prior conviction." All of these arguments must be rejected in light of the recent decisions by the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which are controlling. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In Black II, the California Supreme Court determined that "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.) The court also interpreted Apprendi's "prior conviction" exception broadly. (Id. atpp. 819-820.) The court stated: "[N]umerous decisions from other jurisdictions have interpreted the Almendarez-Torres exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (See cases cited in McGee, supra, 38 Cal.4th at pp. 703-706 . . .; see also United States v. Smith (6th Cir.2007) 474 F.3d 888, 892 [no right to a jury trial concerning the circumstance whether defendant's criminal history was ' "extensive and egregious" '].)" (Id. at p. 819, fn. omitted.)
As to prior convictions, the California Supreme Court observed: "The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is 'quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (McGee, supra, 38 Cal.4th at p. 706 . . . .)" (Black II, supra, 41 Cal.4th at pp. 819-820, fn. omitted.) The California Supreme Court rejected the defendant's argument that "the evidence of his prior convictions consisted only of hearsay statements, contained in the probation report, which are insufficient as a matter of law to prove the prior convictions beyond a reasonable doubt" because the court implicitly concluded that prior convictions need only be proved by a preponderance of the evidence, the standard presumably applied by the trial court. (Id. at p. 820, fn. 9.)
In Sandoval, supra, 41 Cal.4th 825, 838-839, the California Supreme Court reiterated its reasoning in Black II and used it to articulate a harmless error analysis. "In Black II, . . . we hold that there is no Sixth Amendment error in a case in which one or more aggravating circumstances have been established in accordance with Sixth Amendment requirements. As we explain in Black II, 'the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is "legally essential to the punishment" (Blakely, supra, 542 U.S. at p. 313 . . .), that is, to "any fact that exposes a defendant to a greater potential sentence" than is authorized by the jury's verdict alone (Cunningham, supra, 549 U.S. at p. ---- [127 S.Ct. at p. 863]).' (Black II, supra, 41 Cal.4th at p. ---- . . . .) 'Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.' (Id. at p. ----. . . .) By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id. at pp. 838-839.)
In this case, the trial court said that it had read and considered the moving and responsive papers in Eric Adams's motion to dismiss his strike. The court said that it had read and considered the probation report. These documents informed the court that appellant had admitted one strike prior conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 and two prison prior convictions within the meaning of section 667, subdivision (a). Appellant had "ten prior felony convictions and one prior misdemeanor conviction." His prior felony convictions included criminal threats and dissuading a witness. He was on active parole at the time of these offenses. Eric Adams's numerous prior convictions rendered him eligible for an upper term sentence under Black II and Sandoval. (See Cal. Rules of Court, rule 4.421(b)(2) ["The defendant's prior convictions . . . are numerous or of increasing seriousness"].) He was also eligible for an upper term by virtue of his criminal record, which revealed that he had served a prior prison term and had been on parole at the time of these offenses. (See Cal. Rules of Court, rule 4.421(b)(3) & (5) ["The defendant has served a prior prison term," "The defendant's prior performance on . . . parole was unsatisfactory"].) Consequently, the sentencing court was entitled to "rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term . . . regardless whether the facts underlying those circumstances ha[d] been found to be true by a jury." (Black II, supra, 41 Cal.4th at p. 839.)
Disposition
As to Jesse Adams, execution of sentence on count 3 and count 4 is stayed pending service of sentence on count 1. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
As to Eric Adams, the judgment is reversed.
WE CONCUR: RUSHING, P. J., PREMO, J.
The Use Note to CALJIC No. 17.05 states, "The court has a sua sponte duty to instruct the jury on this issue when there is sufficient evidence to support either finding. People v. Jasso (2006) 142 Cal.App.4th 1213, 48 Cal.Rptr.3d 697. See CALJIC 17.05.1 for a suggested findings form." The comment to CALJIC No. 17.05 states, "In the absence of appellate guidance, the committee believes that the jury should be required to sign and date all guilty or not guilty verdict forms and then go on to the issue raised in this instruction."
Jesse Adams further contends, "The imposed 30-year determinate sentence for enhancements under section 667(a)(1) was unauthorized and should be reduced to no more than a 10-year determinate term." In his reply brief, appellant acknowledges, "The California Supreme Court held that these enhancements must be imposed as to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397, 400.)"