Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC755811
McAdams, J.
Defendant Zachary Robey was convicted by jury of two counts of first degree robbery (Pen. Code, §§ 211-212.5, subd (a)), one count of dissuading a witness (§ 136.1, subd. (c)(1)), one count of extortion of property (§§ 518-520), and one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury found true enhancement allegations that defendant personally used a firearm when he committed the robberies and the extortion (§§ 12022.53, subd. (b), 12022.5, subd. (a)). The jury also found that enhancement allegations that defendant knew or should have known that the robbery victims were under the age of 14 (§ 667.9, subd. (a)) were not true. The court sentenced defendant to an aggregate term of 25 years eight months in prison.
All further statutory references are to the Penal Code unless otherwise stated.
The court designated the first robbery count as the principal term and sentenced defendant to the four-year midterm plus 10 years for the gun enhancement. On the second robbery count, the court sentenced defendant to one-third the middle term plus one-third of the 10-year gun enhancement, for a total four years eight months, consecutive. On the dissuading a witness count, the court sentenced defendant to the full midterm of three years (§ 1170.15) plus four years for the gun enhancement, to be served consecutive to the sentence on the robbery count. The court also imposed concurrent midterm sentences on the extortion and drug possession counts.
On appeal, defendant contends that his attorney provided ineffective assistance of counsel when he failed to object to alleged prosecutorial misconduct when the prosecutor misstated the law of extortion in argument and told the jury that she did not have to prove defendant actually received money. Defendant also argues that there was insufficient evidence to support his conviction for dissuading a witness and the related gun enhancement. We conclude that defense counsel was not ineffective because the prosecution did not misstate the law of extortion in argument and that there was sufficient evidence to support both the guilty verdict on the dissuading a witness count and the related gun enhancement. We shall therefore affirm the judgment.
Facts
The convictions in this case arose out of three separate incidents. Since defendant does not challenge his convictions on the robbery counts, we only briefly summarize the evidence related to those counts.
Prosecution Case: The Robberies
On January 24, 2007, while walking home from school, 13-year-old F.R. tried to throw a rock at a stop sign. He missed and hit defendant’s mother’s car, a Mitsubishi Lancer. Defendant was driving the car and followed F.R. home. Along the way, defendant swore at F.R. and threatened to run him over. He said he had a gun, “so don’t play around with me.”
When F.R. got home, he tried to get inside his house, but the front door was locked and he had forgotten his key. His parents were at work. Defendant backed his car into F.R.’s driveway, got out of the car, and told F.R. he wanted to talk to his parents. F.R. offered defendant $40 and his cell phone to go away. Defendant said he wanted the car fixed. Defendant pulled up his shirt and showed F.R. a gun, which was tucked in his waistband.
F.R.’s twin brother, A.R., arrived. A.R. got into the house through the garage or a side door. A.R. asked defendant to stay in the garage, but defendant followed the boys into the house. When A.R. attempted to call his father, defendant hung up the phone.
Defendant heard a noise and told the boys to go upstairs. Defendant followed the boys into their parents’ bedroom, where he saw several jewelry boxes. He told the boys to “get a bag and give me all the goods.” The boys got some garbage bags. Defendant pulled out his gun and touched the things he wanted the boys to put in the bags with the barrel of the gun. They went from room to room and took jewelry, 16 handbags, three television sets, two hand-held video games, a laptop computer, clothing, money, tools, the telephone, and the boys’ cell phones. Defendant hit A.R. in the face twice with the handle of the gun. When A.R. dropped a purse, defendant opened the gun’s chamber and showed A.R. the bullets.
Defendant told the boys to back his car into the garage. While A.R. backed the car into the garage, defendant put his arm around F.R.’s neck and held the gun up against F.R.’s ribs. The boys loaded the items into the car. F.R. made a note of defendant’s license plate number and called the police after defendant left.
Defense Case: Robberies
Defendant testified. He told the jury that he never yelled at F.R., that he did not go inside the house except to wash his hands in the bathroom, that he did not have a gun, that he never hit or threatened the boys, that the boys tried to “bribe” him, and that they gave him the items to compensate for the damage to his mother’s car. Defendant told the jury that he sells methamphetamine and that he gave most of the stolen property to a friend who needed money.
Prosecution Case: Extortion, Dissuading a Witness, and Drug Possession Counts
Defendant had testified on February 1, 2007, that he “crashed” his mother’s Lancer into a parked car and left the scene of the accident. Shortly thereafter, defendant lied to his mother and told her that the car had been stolen. The police responded to the scene of the accident, searched the Lancer, and found defendant’s driver’s license and a piece of paper with the name “Rodel Garcia” written on it. Sergeant Nieves, who was assigned to the robbery investigation, contacted Garcia and that led him to another victim, George Isla.
Isla testified through a Tagalog interpreter. Isla worked at Garcia’s auto body shop and met defendant there. One day, defendant told Isla that Garcia had said that Isla should lend Isla’s brother’s white Ford Mustang (White Mustang) to defendant. According to Isla, defendant was going to use the car to “get” another car from another place. During that conversation, defendant said, “You want to see a gun?” and pulled a.38 caliber “Python” from his waistband. Defendant showed Isla the bullets in the chamber and said they were silver. Later that day, Isla gave defendant the keys to the White Mustang.
Defendant did not return the car. Isla tried to contact him by phone later that day, but defendant never responded. Isla spoke with defendant by phone the following day and asked him for the car back. Defendant said he would return the car if Isla gave him another Mustang and $900.
Isla met face to face with defendant a day or two after he lent him the car. They drove around south and east San Jose in a Camaro for seven hours, from 4:00 p.m. to 11:00 p.m. They stopped at several houses and visited defendant’s child.
The following morning, defendant drove Isla to Isla’s house in Milpitas to get some money for defendant. Defendant said that Isla owed him $500 and that it would cost Isla $500 to get the White Mustang back. During the drive, defendant showed Isla his gun and said “This is your last chance.” Some time before that, defendant said, “ ‘If you will call the police sorry for you.’ ”
Isla got $500 from his brother and sister. However, he did not give the money directly to defendant. He gave it to Garcia to give to defendant. He asked Garcia to go with defendant to pick up the White Mustang and to give the money to defendant after defendant gave Garcia the car. Isla saw Garcia drive away with defendant. Garcia came back later on foot. He did not have the car or the $500.
Isla denied using methamphetamine. Isla testified that he never bought methamphetamine from defendant and that he did not owe defendant any money. Isla never called the police to report what had occurred.
Defendant was arrested at a shopping mall on February 5, 2007. During the search incident to his arrest, the officers found a baggie of white powder in defendant’s right rear pants pocket and a set of keys. The officers also found “a couple bags of clothing” that contained T-shirts, a baseball hat, a pair of jeans and some shoes. Everything except the jeans and the shoes looked newly purchased. Laboratory testing confirmed that the white powder was 5.5 grams of methamphetamine. Sergeant Nieves searched the mall parking lot and found the White Mustang. The keys the officer had found on defendant’s person opened the door and started the car.
Defense Case: Extortion, Dissuading a Witness, and Drug Possession Counts
Defendant testified that he sold methamphetamine to Garcia and referred auto repair business to Garcia. At the time of the robbery, Garcia was working on three of defendant’s cars.
Defendant went to Garcia’s shop a couple of days after the robbery to check on his cars and met Isla. Defendant described Isla as an “excessive drug user,” a “crack-head... just another guy that smokes dope.” Defendant did not have a business relationship with Isla, but thought he was going to start one that day. Defendant and Isla talked about sending methamphetamine to “the island”; Isla said he had family that worked at the airport. Defendant gave Isla one ounce of methamphetamine. Defendant testified that Isla owed him $900 for the methamphetamine. Isla told defendant he would have defendant’s money two days later.
Defendant returned two days later, but Isla did not have the money. According to defendant, Isla made excuses and tried to give defendant some “fake dope.” Defendant talked to Garcia, Garcia talked to Isla, and then Isla offered defendant the White Mustang and said he would pay defendant the $900 in time. Defendant left in the White Mustang.
Isla called defendant a few days later and told defendant the White Mustang belonged to his brother. Defendant got mad when he found out Isla did not own the car. Isla said he needed the car back, but had another Mustang at his sister’s house. As it turned out, the second Mustang had been sold.
Defendant saw Isla two days later. Isla said he had money for defendant; defendant figured Isla was trying to buy the White Mustang back. According to defendant, Isla gave Garcia $500 to give to defendant in exchange for the White Mustang. Garcia rode with defendant and a woman to an unspecified street corner. Defendant dropped Garcia off, told him to wait at the corner, and went to get the White Mustang. When defendant returned with the White Mustang, Garcia was gone. According to defendant, Garcia never gave him the money.
Defendant testified that he did not show Isla a firearm and that he never owned a gun.
Discussion
I. Ineffective Assistance of Counsel: Failure to Object to Prosecutor’s Argument Regarding Extortion Count
Defendant asserts that the prosecutor committed misconduct in her opening argument by misstating the law applicable to the extortion count when she told the jury that she did not have to prove defendant actually received the money. Defendant acknowledges that he did not object to the alleged misconduct below but argues that this court has the discretion to address the issue. Defendant’s primary contention is that his attorney was ineffective when he failed to object to the prosecutor’s misconduct in her opening argument.
The Attorney General argues that defendant has forfeited any claim of prosecutorial misconduct. He also asserts that defense counsel was not ineffective because the prosecutor correctly explained the law of extortion and it was not unreasonable for defense counsel to conclude the argument was proper and that, even if defense counsel’s performance fell below an objective standard of reasonableness, defendant was not prejudiced by his attorney’s failure to object.
A. Background and Argument at Issue
The court instructed that jury with CALCRIM No. 1830, which provides, in part, that to prove extortion, the prosecution must prove: “1. The defendant threatened to unlawfully injure or use force against another person or a third person, or the property of another person or a third person; [¶] 2. When making the threat, the defendant intended to use that fear to obtain the other person’s consent to give the defendant money; [¶] 3. As a result of the threat or use of force, the other person consented to give defendant money; [¶] AND [¶] 4. As a result of the threat or use of force, the other person then gave the defendant money.” (Italics added.) The issues on appeal involve the prosecutor’s argument regarding the fourth element of the crime. We set forth the argument in context, with the specific language at issue in italics.
The prosecutor listed the elements of extortion set forth in the jury instruction and stated, “Now notice that there’s no requirement for me to prove that the defendant actually received the money.” (Italics added.) The prosecutor continued: “Hearing the evidence suggests that the defendant did receive the money. Mr. Isla testified that he gave the money to Rodel Garcia. Defendant concedes that Mr. Garcia had the five hundred dollars. Mr. Isla describes Mr. Garcia coming back from his meeting with the defendant angry. And two days later the defendant is found at a shopping mall having just gone on a little shopping spree with drugs in his pocket, consistent with someone having just received a sum of money. [¶] But remember, the only thing you have to decide beyond a reasonable doubt is, did Mr. Isla give the money to the defendant? Which he did. And the defendant seems to concede as much.”
In addition, the prosecutor argued that she had met her burden by presenting evidence that Isla gave the money to Garcia. The prosecutor stated: “I’ve lumped elements three and four together in this last fact, as a result, George Isla consented to and then did give Rodel Garcia the money.” In argument regarding the lesser included offense of attempted extortion, the prosecutor stated: “But now let’s go back to the first element. The defendant took a direct but ineffective step toward committing extortion by threat. Here his efforts were totally effective. They caused Mr. Isla to give Rodel Garcia the five hundred dollars. So that’s why I think that we don’t have an attempted extortion, we do had a completed extortion....” In summary, the prosecutor argued both that defendant actually received the money and that Isla gave the money to Garcia.
Defendant contends that the prosecutor misstated the law of extortion when she told the jurors that she was not required to prove that defendant actually received the $500 and that, in so doing, she committed misconduct. Before we examine the prosecutorial misconduct claim, we address the forfeiture issue.
A. Forfeiture of Prosecutorial Misconduct Claim
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ ” (People v. Hill (1998)17 Cal.4th 800, 820 (Hill) citing People v. Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], [the] defendant bears the responsibility to seek an admonition if he [or she] believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 800.)
As noted, defendant concedes that his trial counsel did not object to the alleged prosecutorial misconduct. Although defendant elects to approach this problem by claiming ineffective assistance of counsel, he also argues that this court has the authority to address the prosecutor’s misconduct, even in the absence of an objection below, citing People v. Williams (1998) 17 Cal.4th 148, 161. In a footnote, the Williams court stated that except in cases involving the admission or exclusion of evidence, an “appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.” (Id. at p. 161, fn. 6.) In support of its conclusion, the court cited two cases involving claims of prosecutorial misconduct. (Ibid.) While this court has the discretion to address forfeited claims, we are not required to address them (ibid.) and decline to do so in this case. We hold that since defendant failed to object to the prosecutor’s alleged misstatement of the law and failed to ask the court to admonish the jury, he has forfeited his prosecutorial misconduct claim.
Although we decline to exercise our discretion to address the forfeited claim directly, we review the claim indirectly through the prism of defendant’s ineffective assistance of counsel claim. We therefore turn out attention to the rules governing such claims.
A. General Rules Governing Claims of Ineffective Assistance of Counsel
“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.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).) “ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts.’ ” (People v. Hart (1999) 20 Cal.4th 546, 623.)
In determining whether defense counsel was ineffective in this case, we review the principles governing claims of prosecutorial misconduct.
D. General Principles Regarding Prosecutorial Misconduct
“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (Hill, supra, 17 Cal.4th at p. 819, internal quotation marks omitted.) Although prosecutors are given “wide latitude” in arguing their cases, they nevertheless “are held to an elevated standard of conduct.” (Ibid.) The imposition of this higher standard is justified by their “unique function... in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct “threatened defendant’s right to a fair trial.” (Id. at p. 838.) By contrast, there would be “no error of constitutional dimension” where, for example, “inaccuracies in the [prosecution] witness’s testimony were not material errors ‘in the sense that [their] suppression undermines confidence in the outcome of the trial.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
“ ‘It is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.” (Hill, supra, 17 Cal.4th at p. 829.)
To warrant reversal, the challenged conduct must be prejudicial. When the claim “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa, supra, 15 Cal.4th at p. 841; see, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960-961.)
We next determine whether the prosecutor misstated the law by reviewing the legal principles applicable to the offense of extortion.
E. Law of Extortion
Section 518 provides in relevant part: “Extortion is the obtaining of property from another, with his consent,... induced by a wrongful use of force or fear, or under color of official right.” (Italics added.)
“[W]hat is proscribed is the successful wrongful use of force or fear to obtain property from another with his or her consent. Viewed from that standpoint, the elements of the offense are: (1) A wrongful use of force or fear, (2) with the specific intent of inducing the victim to consent to the defendant’s obtaining his or her property, (3) which does in fact induce such consent and results in the defendant’s obtaining property from the victim.... The crime requires an unlawful use of force or fear with the intent of achieving a further consequence, the inducement of another person to consent to the actor’s obtaining the other’s property.” (People v. Hesslink (1985) 167 Cal.App.3d 781, 789-790 (Hesslink).) “This crime, which is sometimes called ‘blackmail,’ differs from robbery in that the property is obtained with the consent of the victim.” (People v. Sales (2004) 116 Cal.App.4th 741, 748.)
“ ‘The crime of extortion is related to and sometimes difficult to distinguish from the crime of robbery.’ (... Hesslink[, supra,] 167 Cal.App.3d 781, 790....) Both crimes have their roots in the common law crime of larceny. Both crimes share the element of an acquisition by means of force or fear. One distinction between robbery and extortion frequently noted by courts and commentators is that in robbery property is taken from another by force or fear ‘against his will’ while in extortion property is taken from another by force or fear ‘with his consent.’ The two crimes, however, have other distinctions. Robbery requires a ‘felonious taking’ which means a specific intent to permanently deprive the victim of the property. [Citation.] Robbery also requires the property be taken from the victim’s ‘person or immediate presence.’ (§ 211.) Extortion does not require proof of either of these elements. (People v. Peck (1919) 43 Cal.App. 638, 645... [defendant convicted of extortion even though the property was to be returned to the victim]; (People v. Cadman (1881) 57 Cal. 562, 563 [threat to expose victim to disgrace unless he dropped an appeal constituted intent to extort property]; People v. Hopkins (1951) 105 Cal.App.2d 708, 709... [based on defendant’s threats, victim went to bank, withdrew money, and gave it to defendant].) Extortion does, however, require the specific intent of inducing the victim to consent to part with his or her property. (... Hesslink, supra, 167 Cal.App.3d at p. 789.)” (People v. Torres (1995) 33 Cal.App.4th 37, 50, fns. omitted.)
In this case, the prosecutor argued that she did not have to prove that the defendant actually received the money to sustain her burden of proof on the extortion count. On appeal, the Attorney General argues that “ [w]hile, in many cases, the property is given immediately to the defendant (see, e.g., People v. Hopkins (1951) 105 Cal.App.3d 708, 709), the wording of the statute, viz., ‘[e]xtortion is the obtaining of property of another, with his consent,... induced by a wrongful use of force or fear...,’ is not so limited.” The Attorney General argues that “the focus of the crime of extortion is the unlawful act of a defendant which causes the victim to part with money.” He contends that under the facts of this case, “where [defendant] had Isla give the money to a go-between (Garcia), [defendant] committed the crime of extortion.” The Attorney General argues that because of defendant’s “threats, Isla gave the money to a person [defendant] agreed could take possession for him” and that “the extortion was completed when Isla arranged with [defendant]” to give the money to Garcia, “even if [defendant] never received it.”
Defendant responds that “the extortion statute requires ‘the obtaining of property from another.’ ” Citing Hesslink, he asserts that courts “have also held that receipt of property is an element of extortion that must be proven beyond a reasonable doubt.” Hesslink does not necessarily support his assertion. It sets forth the elements of extortion as quoted above and uses the term “obtaining property” and not the terms “receiving” or “receipt of property” as defendant suggests. (Hesslink, supra, 167 Cal.App.3d at p. 789.) Thus, the question becomes whether the prosecution, in proving that defendant “obtain[ed] property” from the victim, was required to prove that defendant actually received the property and whether the prosecutor misstated the law of extortion when she told the jury she did not have to prove that defendant actually received the money.
Webster’s Third New International Dictionary (1993) page 1559 defines “obtain” as “to gain or attain possession or disposal of usually by some planned action or method.” “The statutes punishing extortion or blackmail fall into two general categories. One type of statute tends to emphasize the extortion itself – the actual attainment of money or other thing of value – while the other type punishes the extortive threat whether anything was obtained thereby or not.” (31A Am.Jur.2d (2002) Extortion, Blackmail, etc., § 35, p. 560 citing People v. Goodman (1958) 159 Cal.App.2d 54, 61 as an example of the former and Iozzi v. State (1968) 5 Md.App. 415, 247 A.2d 758, 760, which describes the two types of statutes, as an example of the latter.) The California extortion statute requires the actual attainment of money or other property from the victim. (31A Am.Jur.2d, supra, Extortion, Blackmail, etc., § 35, p. 560.) “Under the statutes emphasizing the actual attainment of money or other thing of value, no conviction can be had where there has been no transfer of a thing of value from the victim to the accused. The obtaining of property from another through extortion means not only that the person threatened give up something, but that the person making the threat actually receive something. [¶] In contrast, under statutes focusing on the extortive threat, the crime is complete before the money or other thing of value is handed over.” (Ibid., fns. omitted, citing among other cases, Hesslink, supra, 167 Cal.App.3d 781.)
The United States Supreme Court has stated that the “ ‘obtaining’ requirement” in the New York Penal Code, which like the California statute, defines extortion as the “ ‘the obtaining of property from another, with his consent, induced by a wrongful use of force or fear,....’ ” entails “both a deprivation and acquisition of property.” (Scheidler v. National Organization for Women, Inc. (2003) 537 U.S. 393, 404, 403 [no extortion within the meaning of the Hobbs Act because petitioners did not obtain respondents’ property].)
People v. Franquelin (1952) 109 Cal.App.2d 777, an attempted extortion case, is also instructive. The victim in Franquelin was a former prostitute who had sexual intercourse with the defendant on several occasions because he claimed to be on the vice squad. The defendant subsequently demanded that the victim give him $250 or he would have a friend turn her in. He told her he would ring the doorbell and wait for her in her car the next evening. The victim contacted the police, who gave her money to give to the defendant and installed a bug in her car. The victim met with the defendant as arranged but was unable to give him the money before he stepped out of the car and was arrested. The court concluded that the defendant had committed an attempted extortion because he “did all acts necessary to commit extortion except receive the money.” (Id. at p. 784.)
In summary, under the California extortion statute, more than an extortive threat is required to complete the crime of extortion. The prosecution must show that the victim gave up and the defendant received money or other property. However, our inquiry does not end there. We next address the question whether a defendant who acts through an intermediary can be guilty of extortion.
This case is factually distinguishable from Franquelin, the attempted extortion case, because Isla parted with his money when he gave it to Garcia, whereas the victim in Franquelin never parted with the money. In our view, nothing in the law of extortion prevents the defendant from acting through an agent. For example, in People v. Hopkins (1951) 105 Cal.App.2d 708, 709, the defendant told the victim that he would be “ ‘bumped off’ ” if he did not get money for “gangsters from Chicago.” The court rejected the defendant’s contention that “extortion by means of threats that third persons would do harm to the victim” does not violate section 518 and held that the extortion statute “does not state that the fear which induces the obtaining of property must be induced by threats that the person extorting it will, himself, do bodily harm to his victim.” (Id. at pp. 709-710.) Similarly, in a case such as this, the prosecution may prove that the victim gave property to the defendant by showing that the victim gave property to someone who was designated by the defendant expressly, impliedly, or ostensibly, to receive it on behalf of the defendant.
Based on this authority and analysis, we conclude that under section 518, the prosecution can meet its burden of showing that the defendant obtained property from the victim by showing that the defendant or an agent of the defendant received the property.
F. Analysis
We review the prosecutor’s argument in light of this conclusion to determine whether the prosecutor committed misconduct in argument to the jury. In conducting our inquiry, we examine the prosecutor’s statement in the context of the whole record, including the argument and the instructions. (Hill, supra, 17 Cal.4th at p. 832.) “[W]e ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved of on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 420.)
As we stated, the argument at issue involves the fourth element of extortion set forth in the jury instruction, which required the prosecution to prove that as “a result of the threat or use of force, the other person then gave the defendant money.” (Italics added.) The keys points in the prosecution’s argument include: “Now notice that there’s no requirement for me to prove that the defendant actually received the money.... [¶] But remember, the only thing you have to decide beyond a reasonable doubt is, did Mr. Isla give the money to the defendant? Which he did.” [¶]... [¶] I’ve lumped elements three and four together in this last fact, as a result, George Isla consented to and then did give Rodel Garcia the money.” (Italics added.) In her argument regarding attempted extortion, the prosecutor argued that defendant did not take “a direct but ineffective step toward committing extortion by threat. Here his efforts were totally effective. They caused Mr. Isla to give Rodel Garcia the five hundred dollars.”
Focusing on the word “defendant” rather than the word “received” in the prosecution’s statement that “there’s no requirement [that she] prove that the defendant actually received the money” and viewing the statement in the context of the entire argument, leads us to conclude that the prosecutor was arguing that Garcia was defendant’s agent and that the prosecution had met its burden of showing that Isla gave the money to defendant by showing that Isla gave the money to Garcia. After the prosecutor told the jury that she did not have to prove that defendant actually received the money, she did not argue that proof of the threat alone was sufficient to prove extortion. Instead, she argued that she met her burden of proving Isla gave the money to defendant by showing that Isla gave the money to Garcia. Such an argument is consistent with our interpretation of section 518. Moreover, it was up to the jury to decide whether Garcia was acting on defendant’s behalf when Isla gave Garcia the money.
The instruction on extortion did not state that defendant or his agent needed to actually receive the money. Instead, the court instructed the jury that the fourth element of the offense required the prosecution to show that “As a result of the threat or use of force, the other person then gave the defendant money.” (Italics added.) There were no instructions that told the jury that defendant could act through an agent. Defendant does not claim instructional error and the adequacy of the instruction is not before us.
In addition to arguing that Isla gave the money to Garcia, the prosecutor argued that defendant had actually received the money. The evidence supported that assertion. Isla testified that Garcia came back without the money and without the car and that Garcia was angry when he returned. A reasonable inference from that evidence is that Garcia gave defendant the money but defendant did not give Garcia the car as arranged. Isla did not testify that he thought Garcia pocketed the money and there was no evidence that Garcia took the money. A couple of days after Isla gave the money to Garcia, defendant went shopping, which, as the prosecutor argued, suggests that he had come into some money. Although defendant testified that he did not receive the money from Garcia, the jury may not have believed him. Defendant was an admitted methamphetamine dealer who brandished a weapon at two 13-year-old boys, hit one of the boys with the gun, held the other at gunpoint, and took advantage of their fear to rob their home. Defendant also admitted he lied to his mother and abandoned the scene of an accident when he wrecked her car.
Based on our conclusion regarding the law of extortion and the evidence and argument in this case, we cannot say that the prosecutor committed misconduct when she told the jury that “there’s no requirement for me to prove that the defendant actually received the money.” In our view, the prosecutor’s argument does not amount to misconduct under either the federal or the state standard. Since the prosecutor did not commit misconduct, we conclude that defense counsel was not ineffective when he failed to object to the prosecutor’s argument. We therefore reject defendant’s ineffective assistance of counsel claim.
II. Sufficiency of the Evidence Supporting Conviction for Dissuading a Witness and Related Gun Enhancement
Defendant contends that the only evidence that supported his conviction for dissuading a witness was Isla’s testimony that defendant had told Isla “If you will call the police sorry for you.” Defendant argues that the statement was an expression of pity and not a threat and that it was too ambiguous to constitute dissuasion of a witness. Defendant also contends there was insufficient evidence to support the gun enhancement on the dissuasion count since Isla testified that the statement was made some time before defendant showed him the gun and Isla did not “relate the two incidents.”
When a criminal defendant challenges his or her conviction on the ground that it lacks evidentiary support, “the [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “ ‘[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction... [is] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ [Citation.] Explaining this standard the [United States Supreme Court has] said that ‘this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Id. at p. 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
Defendant was charged with dissuading or attempting to dissuade a witness in violation of section 136.1, subdivision (c)(1). Section 136.1 provides in relevant part that “every person who attempts to prevent or dissuade another person who has been the victim of a crime” from “[m]aking any report of that victimization to any peace officer or state or local law enforcement officer... or prosecuting agency or to any judge” is guilty of a public offense. (§ 136.1, subd. (b)(1).) Subdivision (c)(1) of the statute provides that every person who does such acts “knowingly and maliciously... [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 or the property of any victim, witness, or any third person” is guilty of a felony. The crime of dissuading a witness from testifying can involve a continuous course of conduct. (People v. Salvato (1991) 234 Cal.App.3d 872.)
In this case, there was sufficient evidence that supported both the jury’s conclusion that defendant was guilty of dissuading a witness and its true finding on the gun enhancement. Isla testified through an interpreter and was not a very articulate witness. However, after reviewing his testimony regarding what defendant said to him in the context of relevant events, we conclude that the evidence was sufficient to support the jury’s verdict on the dissuading a witness count. Isla testified that after Garcia told him to lend defendant the White Mustang, defendant asked Isla if he wanted to see a gun and showed him a revolver that he kept in his waistband. Defendant also showed Isla that there were bullets in the chamber of the gun. Later that day, Isla lent defendant the White Mustang. The following day, when Isla asked for the car back, defendant demanded another car and $900. A day or two later, Isla and defendant drove around for seven hours until 11:00 p.m. The following morning, defendant drove Isla home. During that drive, defendant showed Isla the gun again; said, “ ‘This is your last chance’ ”; and demanded $500. Isla testified that at an unspecified time before that, defendant said “ ‘If you will call the police sorry for you.’ ” Viewing this evidence as a continuous course of conduct that spanned three or four days, we reject defendant’s contention that the phrase “ ‘If you will call the police sorry for you’ ” was ambiguous or a statement of pity and not a threat and conclude that there was sufficient evidence to support the verdict on the dissuading a witness count.
We also reject defendant’s contention that the evidence was insufficient to support the jury’s true finding on the gun enhancement. As outlined above, Isla testified that defendant first showed him the gun while attempting to obtain the car. Just as he had done with F.R. and A.R., defendant pulled the gun from his waistband and made sure Isla knew the gun was loaded by showing Isla the bullets in the gun’s chamber. The following day, defendant demanded money for the return of the White Mustang and when he encountered a delay in getting the money, he showed Isla the gun again and told him it was his last chance to comply.
“[I]f the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of section 12022.5(a). Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5(a).” (People v. Granado (1996) 49 Cal.App.4th 317, 325.)
As set forth above, Isla testified that defendant showed the gun to Isla when he said “This is your last chance” and demanded $500 for the return of the White Mustang. Defendant argues that there was insufficient evidence that defendant used the gun to dissuade Isla from reporting the offense to the police. He relies on Isla’s testimony that defendant said “If you will call the police sorry for you” before he said “This is your last chance.” However, that testimony was part of a line of questioning about what happened when defendant drove Isla home to get some money. Given this context, the jury may have concluded that defendant made both statements during the car ride in which defendant brandished the gun. In our view, that would be sufficient to support imposition of the gun enhancement.
For these reasons, we reject defendant’s challenges to the sufficiency of the evidence on the dissuading count and the related gun enhancement.
Disposition
The judgment is affirmed.
WE CONCUR: Elia, Acting P.J., Mihara, J.