Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1180458, James E. Herman, Judge
Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Macdonald Haber appeals a judgment following conviction of battery upon a cohabitant, and attempting to prevent or dissuade a witness from giving testimony or assisting in the prosecution of a crime, with findings of a prior serious felony conviction alleged for enhancement and recidivist sentencing. (Pen. Code, §§ 273.5, subd. (a), 136.1, subds. (a)(2) & (b)(2), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) We modify Haber's presentence conduct credits and order correction of the abstract of judgment in several respects, but otherwise affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Haber and Johnny Faye Brown lived together in a motor home in Los Alamos. During the afternoon of October 20, 2005, they consumed alcohol as they talked. Haber then telephoned his mother and requested to borrow money. She refused his request, and when Haber ended the telephone call, he was angry. He shouted at Johnny: "F-U, you cancer surviving bitch." Johnny struck Haber in the shoulders and chest, and he pushed against her shoulder. Haber backed Johnny into the living room, and she fell or was pushed onto the sofa. He held her down and hit her twice. When Johnny threatened to summon police officers, Haber left the motor home.
To ease the reader's task and not from disrespect, we shall refer to Johnny Faye Brown as "Johnny."
Johnny telephoned the police emergency dispatcher and reported that Haber held her down and punched her five times. She stated that she got "the fuck'n shit beat out of [her.]" The prosecutor played a recording of the emergency telephone call at trial.
Santa Barbara County Sheriff's Deputy William Henslin responded to the emergency. He saw that Johnny's forehead was bleeding and that the left side of her face was swollen. Johnny stated that Haber pushed her onto the sofa and struck her for no reason. Deputy Henslin noticed that Johnny's speech was very slurred and that an odor of alcohol emanated from her breath. He offered Johnny an emergency protective order against Haber and she accepted.
Photographs of Johnny's injuries were admitted into evidence at trial. She suffered a "goose egg" bump on her head, a black eye, and superficial bleeding from a reopened wound.
Following Haber's arrest and confinement at county jail, he telephoned Johnny several times. The jail recorded the telephone conversations and the prosecutor played the recordings at trial.
During the October 23, 2005, telephone call, Johnny informed Haber that she was "full of fucking blood," "sporting a fucking shiner," and that her head was "all swollen up." She described Haber's self-defense claim as "horse shit," and stated that he held her down and "slugg[ed] away" at the side of her head. Haber responded that she would "get better."
During the November 2, 2005, telephone call, Haber stated that the "only thing that [Johnny] can do to help [him] is not talk to [the District Attorney]." He added that if Johnny did not attend trial, the prosecutor had no case: "If they subpoena you[,] don't show up and they don't have a case." Haber also stated that Johnny "came at [him] first." Johnny responded: "That's what happened."
During the November 8, 2005, telephone call, Haber stated that he informed the investigator that Johnny "clocked" him with a metal object. He recommended that she be "mean spittin' vinegar" on the witness stand: "Just give them all the fire you got just like you do for me darlin.'" Johnny agreed, and Haber stated that now they were "on the same sheet."
During the November 21, 2005, telephone call, Haber counseled Johnny to "make the jury hate you . . . be an asshole." He stated that she knew "what [she had] to say" and that he would "tell [her] when [she got] there."
At trial, Johnny testified that she married Haber several days prior to trial. She stated that she struck Haber first. She also testified that he did not hit her, explaining that she struck her head on the kitchen counter. Johnny also denied that Haber attempted to dissuade her not to testify, but later conceded that he "may have."
The jury convicted Haber of battery upon a cohabitant, and attempting to prevent or dissuade a witness from giving testimony or assisting in the prosecution of a crime. (§§ 273.5, subd. (a), 136.1, subds. (a)(2) & (b)(2).) In a bifurcated proceeding, the trial court found that Haber suffered a prior serious felony conviction in 1998 for making terrorist threats, and that he served a prior prison term. (§§ 422, 667.5, subd. (b).) Among other things, Haber requested the court to reduce the present convictions to misdemeanors pursuant to section 17, subdivision (b), and People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974. The trial court denied the motion.
On June 6, 2006, the trial court sentenced Haber to an eleven-year prison term. The trial court soon recalled the sentence, however, due to a sentencing error. On June 26, 2006, it resentenced Haber to an eleven-year term, consisting of an upper three-year term for attempting to dissuade a witness, doubled pursuant to sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), and a five-year enhancement pursuant to section 667, subdivision (a). The trial court imposed an upper four-year term for count 1, doubled that term, and ordered it to be served concurrently. The trial court based the upper sentencing terms upon Haber's criminal record and his poor performance on probation and parole. It then struck the prior prison term allegation and awarded Haber 341 days of presentence custody credits.
Haber appeals and contends that: 1) there is insufficient evidence that he attempted to dissuade a witness or victim in violation of section 136.1; 2) the trial court erred by not instructing, sua sponte, with a unanimity instruction regarding count 2; 3) the trial court abused its discretion by denying his motion to reduce the criminal offenses to misdemeanors; 4) the trial court incorrectly limited his post-sentence conduct credits to 15 percent; and 5) the trial court erroneously calculated his presentence conduct credits.
DISCUSSION
I.
Haber argues insufficient evidence exists that he attempted to dissuade a witness or victim from testifying or assisting in prosecution of a crime, as charged in count 2. (§ 136.1, subds. (a)(2) & (b)(2).) He asserts that subdivision (a)(2) punishes only attempts to prevent any testimony at all, and subdivision (b)(2) punishes only pre-arrest efforts to dissuade. (People v. Fernandez (2003) 106 Cal.App.4th 943, 950 [§ 136.1, subd. (b) punishes a defendant's pre-arrest efforts to prevent a crime from being reported to authorities].)
In reviewing the sufficiency of evidence to support a criminal conviction, we review the entire record favorably to the judgment to determine whether there exists reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Mayfield (1997) 14 Cal.4th 668, 767; People v. Bohana (2000) 84 Cal.App.4th 360, 368.) In performing this task, we draw all reasonable inferences in favor of the judgment. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1044.) We also defer to the implied findings of the trier of fact concerning witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Sufficient evidence supports the conviction of each subdivision of section 136.1.
Section 136.1, subdivision (a)(2), punishes any person who "[k]nowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial. . . ." During the November 2, 2005, recorded telephone conversation, Haber informed Johnny that if she did not attend trial, the prosecutor had no case: "If they subpoena you[,] don't show up and they don't have a case." The trier of fact received evidence of the recorded telephone conversation, and reasonably could determine that Haber was attempting to dissuade Johnny from testifying. Among other things, it could rest its determination upon voice inflection and intonation, and pauses in conversation – matters of the weight of evidence. Johnny did testify that Haber "may have" attempted to dissuade her from testifying.
Section 136.1, subdivision (b)(2), punishes an attempt to prevent or dissuade a witness or victim from "[c]ausing a complaint, indictment, information . . . to be sought and prosecuted, and assisting in the prosecution thereof." Under the circumstances here, Haber spoke to Johnny prior to the filing of the information and stated that the "only thing [she] can do to help [him] is not to talk to [the District Attorney]." He urged her not to accept telephone calls from the District Attorney. Under the plain language of the statute, Haber's statements were attempts to prevent an information from being sought and prosecuted. People v. Fernandez, supra, 106 Cal.App.4th 943, is distinguishable because it involved attempts to influence the victim's testimony at the preliminary hearing, and charges filed pursuant to section 136.1, subdivision (b)(1) [making a report of victimization to any peace officer].
II.
Haber argues that the trial court erred by not instructing, sua sponte, with a unanimity instruction regarding count 2, attempts to dissuade a witness in violation of section 136.1. (CALJIC No. 17.01, now CALCRIM 3500; see generally People v. Diedrich (1982) 31 Cal.3d 263, 280-282.) He asserts that the evidence arguably establishes that he committed more than one criminal act of attempting to dissuade a witness. He contends that the danger exists that he may have been convicted although there is no one single criminal act upon which all jurors agree. Haber asserts that the error denies him due process of law and the right to trial by jury.
Haber asserts that the information charged, the evidence arguably established, and the prosecutor argued two violations of section 136.1--attempting to prevent or dissuade a witness or victim from giving testimony (subdivision (a)(2)) or attempting to prevent or dissuade a witness or victim from causing a complaint or an information to be sought and prosecuted (subdivision (b)(2)). He points out that the trial court instructed with CALCRIM 2622, setting forth alternative acts constituting the crime of intimidating a witness pursuant to section 136.1.
For several reasons, we reject Haber's argument.
First, section 136.1 contemplates a continuous course of conduct of a series of acts over a period of time, and the trial court need not instruct with a unanimity instruction. (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) "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." (Ibid.)
Moreover, even if a unanimity instruction were required to distinguish between section 136.1, subdivisions (a)(2) and (b)(2), any error is harmless under any standard of review. (People v. Frederick (2006) 142 Cal.App.4th 400, 419 [differing standards of review regarding failure to instruct with unanimity instruction].) Subdivision (a)(2) punishes "attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, [or] proceeding . . . ." Subdivision (b)(2) punishes "attempts to prevent or dissuade another person who has been the victim of a crime" from "[c]ausing a complaint, indictment, information . . . to be sought and prosecuted, and assisting in the prosecution thereof." Under the circumstances here, Haber's recorded statements violated each subdivision of section 136.1. He offered no focused defense as to either subdivision. (See People v. Diedrich, supra, 31 Cal.3d 263, 283 [defense to one act was simple denial; defense to second act was an explanation].) He suffered no prejudice.
III.
Haber contends that the trial court abused its discretion by denying his motion to treat the criminal offenses as misdemeanors, pursuant to People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 973. He points to evidence that the altercation was mutual, Johnny suffered minor injuries, and that the parties had consumed alcohol that afternoon. Haber adds that he did not mention force or violence during the recorded telephone conversations from jail, that he did not threaten Johnny against testifying, and that Johnny married him several days prior to trial. In sum, he views the factual circumstances of the two offenses as minor violations of law.
The exercise of discretion to reduce a felony offense to a misdemeanor offense pursuant to section 17, subdivision (b), is "an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration." (People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 981-982.) Factors to be considered include "'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.'" (Id., at p. 978.) We review the trial court's decision pursuant to section 17, subdivision (b), for an abuse of discretion. (Id., at p. 977.) "'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (Id., at pp. 977-978.)
The trial court did not abuse its discretion in view of the nature and circumstances of the offenses, Haber's appreciation and attitude toward the offenses, and his criminal history. (People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 978.) Here the trial court stated that the "best indication of what actually occurred" were Johnny's statements during the October 23, 2005, recorded telephone conversation describing her injuries (he "knock[ed] the hell out of [her])" and warning Haber that he could not "just go around beating up women . . . and getting away with it." Haber also urged Johnny to falsely testify that she "clocked" him with a metal object, thus inviting his physical response. Moreover, prior to Haber's 1998 criminal threats conviction, he had been convicted of disturbing the peace, resisting arrest, public intoxication and violating a protective order. He also has violated probation and parole. Haber does not demonstrate any positive background or character that could lead the court to believe that he will leave behind his life of crime if the criminal offenses are reduced to misdemeanors. In sum, the trial court did not act unreasonably when it ruled that it could not "consider this in any way a 17(b)-type case."
IV.
Haber argues that the abstract of judgment erroneously limits his post-sentence conduct credits to 15 percent. He correctly points out that sections 667, subdivision (c)(5) and 1170.12, subdivision (a)(5), limit his post-sentence credits to 20 percent. The Attorney General concedes. Under the circumstances here, Haber may receive 20 percent post-sentence conduct credits.
V.
Haber contends that the trial court erroneously calculated his presentence conduct credits in two respects: First, the trial court incorrectly calculated his local conduct credits from the date of his arrest through the day of initial sentencing as 112 days, rather than 114 days. (§ 4019.) The Attorney General concedes that section 4019 requires that Haber receive two additional days of conduct credits, for a total of 343 days of presentence credits. (People v. Philpot (2004) 122 Cal.App.4th 893, 908 [explaining method of calculating conduct credits].)
Second, Haber points out that he was resentenced 20 days following his initial sentencing, before authorities delivered him to state prison. He asserts that he is due conduct credit pursuant to section 4019 for those 20 days, for total credits of 373 days.
The Attorney General responds that Haber may not receive conduct credits pursuant to section 4019 after he was initially sentenced on June 6, 2006. (People v. Johnson (2004) 32 Cal.4th 260, 267-268 [recall of sentence does not restore convicted defendant's presentence status].) He concedes that Haber may receive an additional 24 days of actual credit and conduct credit for the period of time between June 6, 2006, and June 26, 2006, when he was resentenced. We agree.
In People v. Johnson, supra, 32 Cal.4th 260, 267-268, our Supreme Court held that a defendant is not entitled to presentence conduct credits for time confined in county jail while awaiting resentencing. "[R]ecall of sentence does not remove a prisoner from the Director [of Correction's] custody or restore the prisoner to presentence status as contemplated by section 4019." (Id., at p. 267.) Although Haber was housed in county jail for 20 days following his initial sentencing and prior to resentencing, he does not receive presentence conduct credits pursuant to section 4019 for that period. (Id., at pp. 267-268.) Haber was no longer a prisoner confined to county jail "prior to the imposition of sentence for a felony conviction" during the 20-day period. (§ 4019, subd. (a)(4).)
The trial court is directed to modify the abstract of judgment to remove the 15 percent limitation on conduct credit, and to reflect 249 days of actual credit and 118 days of conduct credits, for a total of 367 days credit as of June 26, 2006. The judgment is otherwise affirmed.
We concur: YEGAN, J. COFFEE, J.