Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge.
BENKE, Acting P. J.
Defendant and appellant David Amory Griffin was convicted of four counts of corporal injury to a roommate or spouse, two counts of forcible rape, two counts of attempting to dissuade a witness from prosecuting a crime, one count of sodomy by use of force, and one count of forcible oral copulation. Appellant was sentenced to a term of 32 years in state prison.
On appeal appellant contends his conviction on one of the counts of attempting to dissuade a witness should be reversed because the trial court failed to sua sponte provide the jury with an instruction requiring that jurors unanimously agree as to which of a number of telephone calls and messages constituted the attempt to dissuade the victim from prosecuting him. We find no error because it was clear all the telephone messages which were the subject of the disputed count were part of one continuous attempt to dissuade the victim.
Appellant also argues the other count of attempting to dissuade a witness should be reversed because it is not supported by sufficient evidence independent of the telephone messages. We reject this contention. The second count is supported by separate evidence appellant summoned the victim to his lawyer's office and had her write and sign a letter recanting her accusations against him.
We also reject appellant's related contention that one of the dissuading counts should have been stayed under Penal Code section 654. Appellant engaged in separate acts with respect to each count. The threatening messages were separate from the act of arranging for the victim to recant her accusations in writing.
Contrary to appellant's contention, the testimony of a nurse and a detective were sufficient to support his conviction of forced oral copulation. The trial court also acted properly in permitting the nurse to testify that the victim's physical injuries were consistent with her accusations against appellant.
Finally, we also reject appellant's contention the trial court did not have the power to impose consecutive sentences, even though the jury made no findings with respect to the circumstances which supported the trial court's determination.
STATEMENT OF FACTS
The prosecution presented evidence that in 2005 appellant and Chandra B. were living together and involved in a romantic relationship. The prosecution presented further evidence that between July 3, 2005, and July 26, 2006, appellant battered, raped, and sodomized Chandra and forced her to orally copulate him. The crimes occurred during four separate incidents, and after three of the incidents Chandra was examined by medical professionals.
After the final incident, Chandra ended her relationship with appellant and appellant was prosecuted for the assaults on her. In a series of telephone calls and telephone messages, appellant threatened Chandra and demanded she write a letter "dropping the charges." In one telephone call, appellant threatened to kill Chandra or have one of his friends kill her. Following the telephone calls and messages and at appellant's direction, Chandra went to appellant's lawyer's office where she in fact wrote a letter recanting her accusations against appellant. According to Chandra, appellant was present in the lawyer's office while appellant's lawyer told her what to write. Shortly after writing the letter, Chandra reported appellant's calls and the letter to a district attorney's office investigator. At a later meeting with the investigator, Chandra told the investigator about yet another telephone message from appellant in which he told her she had to help him get out of all the trouble she caused him.
Appellant was charged in a multiple-count information with corporal injury to a spouse or roommate, forcible rape, sodomy by force, and forcible oral copulation. In addition, appellant was charged with two counts of attempting to dissuade a witness from prosecuting a crime. One count of dissuading a witness was based on the letter Chandra wrote at appellant's lawyer's office. The other dissuading count was based on the telephone calls to Chandra and the message he left after she wrote the letter for him.
At trial, Chandra, who had resumed her relationship with appellant, was compelled to testify for the prosecution and was a very uncooperative witness. As we indicated at the outset, notwithstanding Chandra's lack of cooperation, appellant was convicted of four counts of corporal injury, two counts of rape, one count of sodomy, and one count of oral copulation. Appellant was convicted of both counts of dissuading a witness. The trial court sentenced appellant to 32 years in state prison.
DISCUSSION
I
In his first argument, appellant contends that with respect to the dissuading count based on the telephone calls and messages, the trial court had a sua sponte duty to instruct the jury that jurors were required to agree unanimously as to which of the telephone calls and messages constituted the unlawful persuasion. We find no error.
A unanimity instruction is required where a defendant has been charged with a single criminal act but the prosecution has presented evidence of more than one instance of the charged crime and has not selected a particular instance upon which it relies to prove the charge. (People v. Moore (1986) 185 Cal.App.3d 1005, 1014.) However, a unanimity instruction is not required where a crime consists of a continuous course of conduct. This exception to the unanimity requirement arises in two contexts: "The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when, as here, the statute contemplates a continuous course of conduct or a series of acts over a period time." (People v. Thompson (1984) 160 Cal.App.3d 220, 224.)
As respondent points out, the crime of dissuading a witness, as proscribed by Penal Code section 136.1, subdivision (b)(2), contemplates a continuous course of conduct. (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) The statute provides in pertinent part: "every person who attempts to prevent or dissuade another person who has been the victim of a crime... from... [c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof" is guilty of a public offense. (§ 136.1, subd. (b)(2).) "The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. 'Prevent' and 'dissuade' denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception, and no election or unanimity instruction was required." (People v. Salvato, supra, 234 Cal.App.3d at p. 883.)
All further statutory references are to the Penal Code unless otherwise specified.
As in People v. Salvato, no unanimity instruction was required here. Appellant's crime consisted of his continuous telephonic effort to prevent Chandra from testifying against him.
II
Appellant contends the other conviction of dissuading a witness, based on the letter Chandra wrote, is not supported by sufficient evidence. We find ample evidence to support the letter count.
At trial, Chandra testified appellant called her and told her to come downtown to his attorney's office where she wrote, in the form of a letter, what appellant's attorney instructed her to write. The fact appellant did not write the letter himself or instruct Chandra what to write did not immunize him from criminal liability. As we have seen, the face of section 136.1 makes it an offense to dissuade a crime victim from assisting in prosecution of a crime. The goal of section 136.1 "was to discourage all who attempted to dissuade witnesses, regardless of the means selected or the success of the attempt." (People v. Foster (2007) 155 Cal.App.4th 331, 337, italics added.) In light of the fact that appellant had assaulted Chandra in a brutal fashion on a number of occasions, the jury could reasonably conclude his conduct in facilitating her trip to the attorney's office represented a powerful but implied threat to harm her if she did not cooperate in his effort to undermine his prosecution. Thus, the conduct which gave rise to that implied threat was sufficient to support a conviction.
We recognize the jury no doubt also considered the evidence presented with respect to the other count of dissuading in reaching a conclusion as to appellant's goal in arranging to have Chandra write the letter. However, contrary to appellant's argument, this did not prevent the jury from finding appellant guilty on a separate count of dissuading. The jury was just as entitled to rely on the evidence of the other dissuading count as it was to rely on evidence of the underlying sexual assaults and batteries in determining appellant's motive in bringing Chandra to his lawyer's office. The jury's probable reliance on the telephone calls did not make the acts which supported the letter count—appellant's conduct in summoning Chandra to his lawyers office—lose their own independent significance.
III
The trial court sentenced appellant to the mid-term of three years on the letter count (count 9) to run consecutively to the sex crime counts. The trial court sentenced appellant to a concurrent term of two years on the telephone calls count (count 10). On appeal appellant contends that, rather than imposing concurrent terms, the trial court should have stayed sentencing on one of the dissuading counts under section 654. We find no error.
"Section 654 provides '[a]n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one.' "
" 'The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense....' (People v. Liu (1996) 46 Cal.App.4th 1119, 1135 [concurrent sentences for two convictions of conspiracy to murder were proper because each conspiracy involved a separate victim; however, separate punishment for offense of carrying a silencer could not stand where the objective of the crime was the successful completion of the conspiracies].)" (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345.)
However, as respondent points out, where as here, offenses were committed on different occasions, they may be punished separately even though they were part of an overall scheme of criminal conduct. (See People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1254; In re William S. (1989) 208 Cal.App.3d 313, 315-317.) When as here, there has been sufficient time for the defendant to reflect after committing one crime, courts have found that a second crime, even though closely connected to the first crime, will have a distinct enough objective to permit separate punishment. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1255; see also People v. Beamon (1973) 8 Cal.3d 625, 630-639.) In People v. Kwok the defendant committed a burglary of his victim's house as a means of changing the lock on a door so that he could later re-enter the house undetected and commit a sexual assault. Although the burglary was closely connected to the overall goal of sexually assaulting the victim, the court found that the separation in time permitted them to be treated as distinct crimes. "[I]t is clearly a 'course of conduct divisible in time,' consisting of separate offenses which may therefore be separately punished." (People v. Kwok, supra, 63 Cal.App.4th at p. 1256.)
Here, the telephone calls were plainly separated in time from the letter writing. Moreover, as respondent points out, the telephone calls also had a distinct purpose. While the letter was clearly designed to affirmatively interfere with appellant's prosecution, the telephone calls and messages, including especially the message appellant left after Chandra had written the letter, were designed to achieve the further distinct goal of discouraging Chandra from thereafter testifying against him. Given these circumstances, the court did not err in imposing punishment on both counts of dissuading a witness.
Contrary to appellant's suggestion, there is no material inconsistency between our treatment of his unanimity contentions and his section 654 argument. As we have discussed, the record here shows that appellant committed two separate crimes with distinct criminal objectives. The fact that one crime consisted of a number of acts which did not require a unanimity instruction did not require that the trial court stay sentencing of the other crime.
IV
In support of the allegation that appellant forced Chandra to orally copulate him, the prosecution relied on the testimony of the SARS nurse who treated Chandra and a police officer to whom she complained. The nurse testified that Chandra told her that after appellant physically abused her and threatened to kill her, appellant pulled down his pants and "shoved his penis in [her] mouth and grabbed her by the hair and forced her." The nurse testified Chandra told her that following the forced oral copulation, appellant anally raped her. The nurse further testified that when she examined Chandra, Chandra's face was bruised, lacerated, swollen, and red and her chest had dark purple bruises. The nurse's testimony was corroborated by a police officer who testified Chandra told him appellant had beaten her, raped her, threatened to kill her and "force[d] her to orally copulate him." For her part, Chandra conceded that appellant had put his penis in her mouth but did not believe she had told the nurse or the officer that he "forced" his penis into her mouth.
Contrary to appellant's argument, the testimony of the nurse and the officer were sufficient to support his conviction of forced oral copulation. There is no dispute Chandra orally copulated appellant. The only area of dispute in the record is whether appellant forced Chandra to orally copulate him. In that regard, given the condition of Chandra's face immediately after the incident, the jury could reasonably conclude that, notwithstanding Chandra's reluctance to testify against appellant at the time of trial, Chandra had been the victim of a violent assault which included forcing her to orally copulate appellant. The facts in this case are in sharp contrast to those discussed in People v. Carvalho (1952) 112 Cal.App.2d 482, 489, 493, where the victim of an alleged kidnapping ignored numerous opportunities to safely escape or summon help. Unlike the record in People v. Carvallho, here the conviction is supported not only by the victim's statements but by her physical condition.
V
At trial and over appellant's objection, the trial court permitted the SARS nurse to testify to the effect that the physical injuries she noted in examining Chandra were consistent with the sexual assault Chandra described to her. On appeal, appellant contends the trial court erred in admitting the nurse's conclusion. We find no error.
The nurse's testimony fell within "the mainstream of a long line of California decisions which permit an expert medical witness to give an opinion of the cause of a particular injury on the basis of the expert's deduction from the appearance of the injury itself." (People v. Bledsoe (1984) 36 Cal.3d 236, 249.) Contrary to appellant's argument, the nurse was not rendering her opinion on the basis of her observation of Chandra's behavior or any psychological examination she had performed on Chandra. Thus the nurse's opinion was not barred by the rule set forth in People v. Bledsoe and followed in People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099-1100, with respect to expert testimony about the behavior of victims of sexual assault.
VI
Finally, appellant contends the trial court violated his Sixth Amendment rights by sentencing him to consecutive terms. Appellant contends that, under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348], the trial court was not permitted to impose consecutive sentences in the absence of findings by the jury supporting that sentencing choice. The Supreme Court recently rejected appellant's contention in Oregon v. Ice (2009) ___U.S.___ [129 S.Ct. 711, 714-715.]
Judgment affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.