Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F09902557 Carlos A. Cabrera, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Poochigian, J., and Detjen, J.
A jury convicted appellant, Luis Alonzo Membrila (Membrila), of felony dissuading a witness (count 1/Pen. Code, § 136.1, subd. (c)(1)) and misdemeanor inflicting corporal injury on a cohabitant (count 2/§ 273.5, subd. (a)) and found true two prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On October 8, 2009, the court sentenced Membrila to an aggregate five-year term: the midterm of three years on count 1, credit for time served on count 2, and two consecutive one-year prior prison term enhancements.
On appeal, Membrila contends the court committed instructional error in the instant case and sentencing error in case No. F09904010. Additionally, we will consider whether Membrila is entitled to additional presentence custody credit pursuant to the recent amendment of section 4019. We will reject Membrila’s claim of instructional error. We will also find partial merit to Membrila’s claim of sentencing error and remand the matter to the trial court so that it may correct this and other errors that were disclosed by our review of the record in this matter. In all other respects, we will affirm.
I. FACTS
Esmeralda Gaeta and Membrila were involved in a relationship for 11 years and had three children together. In April 2009, Gaeta was living with Membrila and their children at a house in Fresno belonging to Membrila’s mother. On April 27, 2009, Membrila had been drinking outside the house with friends when he went inside and complained to Gaeta about a tire Gaeta had gotten fixed for $5 the previous week. Membrila began calling Gaeta names and hit her on the face with his hand. Gaeta grabbed a phone and told Membrila she was going to call the police. Membrila told her she better not and grabbed the phone away from her. Gaeta went to another room followed by Membrila. They continued arguing and, as Membrila came at her, she hit him once on the face. Membrila then hit Gaeta for a few seconds on her head, face and arms. When Membrila’s mother pulled him away, Gaeta left the room. Gaeta’s mother eventually picked her up and Gaeta called the police.
II. DISCUSSION
A. The Alleged Instructional Error
During jury instructions, the court charged the jury with respect to the dissuading a witness with CALCRIM No. 2622 as follows:
“The defendant is charged in Count # 1 with intimidating a witness in violation of Penal Code section 136.1.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant maliciously tried to prevent or discourage Esmeralda Gaeta from making a report that she was a victim of a crime to Fresno Police Department[;]
“2. Esmeralda Gaeta was a crime victim;
“AND
“3. The defendant knew he was trying to prevent or discourage Esmeralda Gaeta fromreporting [sic] a crime to Fresno Police Department and intended to do so.
“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.
“A person is a victim if there is reason to believe that a federal or state crime is being or has been committed or attempted against him or her.
“It is not a defense that the defendant was not successful in preventing or discouraging the victim.
“It is not a defense that no one was actually physically injured or otherwise intimidated.”
The court also instructed the jury with CALCRIM No. 2623 as follows:
“If you find the defendant guilty of intimidating a witness, you must then decide whether the People have proved the additional allegations that the defendant acted maliciously or used or threatened to use force.
“To prove this allegation, the People must prove that:
“1. The defendant acted maliciously.
AND
(2). The defendant used force or threatened, either directly or indirectly, to use force or violence on the person of a victim.
“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 People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.”
Along with a verdict form for finding Membrila not guilty of dissuading a witness, the court provided the jury a verdict form for finding Membrila guilty of this offense that read as follows:
“We, the jury in the above-entitled action, find the defendant, LUIS MEMBRILA GUILTY of a violation of Penal Code Section 136.1, INTIMIDATING A WITNESS, occurring on or about April 27, 2009, as charged in Count 1 of the Complaint filed herein.
“We further find the additional allegation that the Defendant, LUIS MEMBRILA, USED FORCE OR THREATENED TO USE FORCE is:
TRUE NOT TRUE.
“(Circle the appropriate finding)”
The court, however, did not specifically charge the jury that misdemeanor dissuading a victim is a lesser included offense of felony dissuading a witness. Membrila contends the court prejudicially erred by its failure to so charge the jury because misdemeanor dissuading a witness is a lesser included offense of felony dissuading a witness. We will reject Membrila’s claim of instructional error. “The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. [Citation.] This sua sponte duty encompasses instructions on lesser included offenses that are supported by the evidence. [Citation.]” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.)
“California courts have applied two tests to determine whether an uncharged offense is necessarily included within a charged offense: ‘the “elements” test and the “accusatory pleading” test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.…
“Section 136.1 criminalizes trying to dissuade a victim from reporting a crime. ‘By its terms, section 136.1, subdivision (b)(1), provides for alternative felony-misdemeanor punishment, as it is punishable “by imprisonment in a county jail for not more than one year or in the state prison….”’
“To prove a violation of section 136.1, subdivision (b)(1), the prosecution must show (1) the defendant has attempted to prevent or dissuade a person (2) who is a victim or witness to a crime (3) from making any report of their victimization to any peace officer or other designated officials. Section 136.1, subdivision (b)(1) does not require that the defendant act knowingly and maliciously. [Citation.] Section 136.1, subdivision (c)(3) makes the offense in subdivision (b)(1) a felony where the person undertakes the acts of dissuasion knowingly and maliciously, and ‘[w]here the act is committed by any person who has been convicted of any violation of this section....’ (§ 136.1, subd. (c)(3).)” (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320, italics added (Upsher).)
In Upsher, the appellate court concluded that misdemeanor dissuading a witness in violation of section 136.1, subdivision (b)(1), is a lesser included offense of felony dissuading a witness in violation of section 136.1, subdivision (c)(3). In so concluding, the Upsher court reasoned: “It is plain from the language of the two subsections that a violation under section 136.1, subdivision (c)(3) includes all of the elements of the violation of section 136.1, subdivision (b)(1), with the additional requirement that the defendant act ‘knowingly and maliciously.’ [Citation.] Thus, the greater offense cannot be committed without also committing the lesser offense. [Citations.]” (Upsher, supra, 155 Cal.App.4th at p. 1321, fn. omitted.)
In accord with Upsher, we agree with Membrila that dissuading a witness in violation of section 136.1, subdivision (b)(1), is a lesser included offense of dissuading a victim in violation of section 136.1, subdivision (c)(3).
Further, the instructions to the jury clearly gave them the option of convicting Membrila of the lesser offense of misdemeanor dissuading a victim if they did not find that he used force in committing this offense or the greater offense of felony dissuading a victim if they found he used force. Although the jury was not specifically instructed that dissuading a witness is a lesser included offense of dissuading a witness with the use of force, Membrila has not cited any authority that requires the court to specifically so instruct the jury.
Membrila contends it cannot be assumed “the jurors understood that they were still finding [Membrila] guilty of a crime if they found the force allegation to be not true” and that the jury “may have found the force allegation to be not true if it knew that [Membrila] was still being convicted of a crime if that finding were [not] made.” Membrila is wrong. CALCRIM No. 2622 instructed the jury that Membrila was being charged in count 1 with intimidating a witness in violation of section 136.1 and it set forth the elements that the jury had to find true in order to find Membrila “guilty of this crime.” (Italics added.) Accordingly, we reject Membrila’s claim of instructional error.
B. The Sentencing Errors
1. Introduction
On October 8, 2009, in the instant case (Fresno County Superior Court case No. F09902557), the court sentenced appellant to an aggregate five-year term: the middle term of three years on Membrila’s conviction for dissuading a witness, two 1-year prior prison term enhancements, and time served on his misdemeanor conviction for inflicting corporal injury on a cohabitant. In Fresno County Superior Court case No. F09904010, the court sentenced Membrila to a concurrent two-year term on his conviction for felony driving under the influence causing injury (Veh. Code, § 23153, subd. (b)), a stayed three-year great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)), and two stayed prior prison term enhancements.
Membrila contends the court did not have jurisdiction in case No. F09904010 to stay the prior prison term and great bodily injury enhancements and that the appropriate remedy is to strike them. We remand the matter for resentencing so the trial court can address this and the other errors discussed below.
2. The Prior Prison Term Enhancements
“Once [a] prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Thus, the court erred when it stayed the two prior prison term enhancements in case No. F09904010.
Moreover, Membrila’s probation report indicates that Membrila served only two prior prison term enhancements. Thus, it appears that the prior prison term enhancements in each case are the same. In People v. Tassell (1984) 36 Cal.3d 77, 90, the Supreme Court explained that prior prison term enhancements are imposed only once as the last step in imposing an aggregate sentence:
“Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. Enhancements for prior convictions - authorized by sections 667.5, 667.6 and 12022.1 - are of the first sort. The second kind of enhancements - those which arise from the circumstances of the crime - are typified by sections 12022.5 and 12022.7: was a firearm used or was great bodily injury inflicted? Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.”
Thus, if the two prior prison term enhancements in each case are the same, this will provide an additional basis for the trial court to strike the duplicate enhancement allegations on remand.
3. The Great Bodily Injury Enhancement
“Ordinarily, an enhancement must be either imposed or stricken ‘in furtherance of justice’ under Penal Code section 1385. [Citations.] The trial court has no authority to stay an enhancement, rather than strike it – not, at least, when the only basis for doing either is its own discretionary sense of justice. [Citations.]” (People v. Lopez (2004) 119 Cal.App.4th 355, 364.)
It is unclear why the court stayed the great bodily injury enhancement here. Imposing this enhancement would not have violated Membrila’s plea bargain in case No. F09904010 because it would have increased Membrila’s concurrent term in that case to only five years, which was within the parameters of his plea bargain. Thus, it appears that the court stayed the great bodily injury enhancement out of its own discretionary sense of justice, which, as noted above, it may not do.
Moreover, section 667.5, subdivision (c)(8), lists as a violent felony, “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, …”
Section 2933.1, subdivision (a), provides, “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” This limitation also applies to presentence custody credit. (§ 2933.1, subd. (c).)
On remand, the court will have the option of imposing the great bodily injury enhancement, striking the great bodily injury enhancement allegation, or just striking the punishment. (In re Pacheco (2007) 155 Cal.App.4th 1439, 1444; § 1385, subd. (c)(1).) If the court imposes the enhancement or strikes only the punishment, section 2933.1 will limit Membrila to earning only 15 percent presentence conduct credit whereas if the court strikes the allegation this limitation will not apply. (In re Pacheco, supra, 155 Cal.App.4th at p. 1444.)
Membrila cites some of the trial court’s sentencing comments to contend that the court’s intent to strike the great bodily injury enhancement is evident from its attempt to stay the enhancement. We need not attempt to decipher the court’s intent from these comments because on remand the trial court will have the opportunity to clarify its intent.
C. The Other Sentencing Errors
Our review of the record disclosed the following errors. At Membrila’s October 8, 2009 hearing, the court mentioned that in case No. F09904010, Membrila admitted at least one multiple victim enhancement pursuant to Vehicle Code section 23558. Although the court may strike the additional punishment pursuant to this section if it states reasons, the court did not impose punishment on this enhancement or enhancements or strike them. On remand, the court should address each such enhancement that Membrila admitted in case No. F09904010.
Vehicle Code section 23558 provides: “A person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code or in violation of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements that may be imposed pursuant to this section is three.
Further, Membrila was arrested in the instant case on April 27, 2009, and remained in custody through the date of sentencing on October 8, 2009, for a total of 165 days. The court awarded Membrila 247 days of presentence custody credit consisting of 165 days of presentence actual custody credit and 82 days of presentence conduct credit. Although the court did not state to which case these amounts applied, these amounts are listed in the abstract of judgment in the instant case. They also correspond to the actual custody time he spent in custody on the instant case and the corresponding conduct credit he would be entitled to if the limitation of section 2933.1 does not apply and the conduct credit is calculated on a one-for-two basis pursuant to the version of section 4019 in effect when Membrila was sentenced.
As discussed ante, section 4019 was recently amended to allow most defendants to earn one for one presentence conduct credit. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50 (Sen. Bill No. 18XXX).) When Membrila was sentenced, section 4019 provided for one for two presentence conduct credit. (Former section 4019, subds. (b), (c), & (f).)
Additionally, since the court imposed a concurrent sentence in case No. F09904010, the court should have awarded Membrila the same amount of presentence custody for the above noted time period, against the term imposed in that case. (People v. Schuler (1977) 76 Cal.App.3d 324, 330.)
Moreover, Membrila committed the driving under the influence with injury offense in case No. F09904010 on November 30, 2008. Due to the nature and seriousness of this offense, it can be inferred that Membrila was arrested on that date and spent at least one day in presentence custody for that offense. Thus, it appears that Membrila may be entitled to additional presentence actual custody credit in that case and to the corresponding conduct credit, if any.
The trial court also erred in the number of assessments it imposed pursuant to Government Code section 70373, subdivision (a)(1), and section 1465.8, subdivision (a)(1). Government Code section 70373, subdivision (a)(1), provides: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, … The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (Italics added.)
Similarly, section 1465.8, subdivision (a)(1), provides: “To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense, …” (Italics added.)
Since appellant was convicted of two offenses in the instant case and one offense in case No. F09904010, the court should have imposed two assessments pursuant to Government Code section 70373 and two pursuant to section 1465.8 in the instant case and one assessment pursuant to each of these sections in case No. F09904010.
D. The 4019 Credit Issue
On October 11, 2009, the California Legislature amended section 4019, effective on January 25, 2010, to increase the number of presentence days of conduct credit certain defendants can earn. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50 (Sen. Bill No. 18XXX).) In pertinent part, section 4019 now provides that any person who is not required to register as a sex offender, and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, subdivision (c), or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
As noted earlier, Membrila’s admission of the great bodily injury enhancement in case No. F09904010 made his conviction a violent felony as defined in section 667.5, subdivision (c). Consequently, it also made him ineligible for the more generous conduct credit provisions provided for by the amendment of section 4019. However, even if the great bodily injury enhancement did not make him ineligible for the more generous conduct credit provisions of section 4019, as amended, we would nevertheless find that he is not entitled to the benefit of this amendment.
Under section 3, it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘“clear and compelling implication”’” from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only. We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based that conclusion, that the section 3 presumption was rebutted in that case, do not apply to the amendment to section 4019.
We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
III. DISPOSITION
The aggregate sentence in the instant case and case No. F09904010 is vacated and the matter is remanded for resentencing in a manner consistent with this opinion. In all other respects, the judgment is affirmed.
“Notwithstanding any other provision of law, the court may strike the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”