Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 09CM2261 Thomas DeSantos, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Coleridge Jerome Tunstall.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Michael James.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant Demetria Rochelle Smith.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P.J.
INTRODUCTION AND PROCEDURAL FACTS
In July 2008, Yvonne Tunstall stabbed Latura Brooks. Latura’s sister, Tikiyie Brooks, witnessed the stabbing. Criminal charges were filed against Yvonne. Latura and Tikiyie were subpoenaed as witnesses to appear in court on April 19, 2009. Shortly after midnight on April 12, 2009, Tikiyie was attacked by Demetria Rochelle Smith (Smith), Michael James (James), and Coleridge Jerome Tunstall (Tunstall) (collectively appellants).
Solely to avoid confusion, some individuals will be referred to by their first names. No disrespect is intended or implied by this informality.
Unless otherwise specified, all dates refer to 2009.
Smith, Tunstall and James were charged with dissuading a witness by force or threat (count 2), assault with force likely to cause great bodily injury (count 3) and making criminal threats (count 4). (Pen. Code, §§ 136.1, subd. (c)(1), 245, subd. (a)(1), 422.) Smith was charged with an additional count of dissuading a witness (count 1). Great bodily injury allegations were attached to all of the counts. (§ 12022.7, subd. (a).) Prior strike and prior prison term allegations were alleged against Smith and James. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) A joint jury trial was held.
All further statutory references are to the Penal Code unless otherwise indicated.
Smith was found guilty of all counts. The great bodily injury allegations attached to counts 2 through 4 were found true. In a bifurcated proceeding, the court found one prior strike and one prior prison term allegation to be true. Smith was sentenced to an aggregate term of 20 years imprisonment plus a consecutive one-year term, which was imposed for a different case.
Tunstall was found guilty of counts 2, 3 and 4; the great bodily injury allegations attached to these counts were found true. He was sentenced to an aggregate term of seven years eight months imprisonment.
James was found guilty of knowingly and maliciously dissuading a witness by force, as a lesser included offense to count 2. (§ 136.1, subd. (a)(1).) The great bodily injury allegation attached to count 2 was found not true. He was acquitted of counts 3 and 4. In a bifurcated proceeding, the court found two prior strikes and two prior prison term allegations to be true. He was sentenced to 25-years-to-life imprisonment plus 10 years.
Smith, Tunstall and James separately appealed. This court granted a request to consolidate their appeals. Appellants argue the trial court erred by denying a Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) They also contend the trial court erred by denying a motion to dismiss the jury panel. James separately argues there is insufficient proof that he maliciously dissuaded a witness, and the trial court abused its discretion by refusing to reduce this conviction to a misdemeanor or to dismiss one or both of his prior serious felony convictions. Smith and Tunstall separately argue the trial court did not correctly apply section 654. We agree that section 654 was not properly applied when Smith’s and Tunstall’s sentences were fashioned. The rest of appellants’ arguments lack merit. We will modify Smith’s and Tunstall’s sentences and, as modified, affirm the judgments against all appellants.
FACTS
I. Prosecution Evidence.
In July 2008, Yvonne and her children were harassing Latura. They threatened Latura and vandalized her car. One day, Yvonne stabbed Latura in the head and back. Tikiyie witnessed the stabbing.
Criminal charges were filed against Yvonne. Latura and Tikiyie were subpoenaed several times by the prosecution. Each time a subpoenaed issued, Latura and Tikiyie were harassed by various people. On approximately 20 separate occasions Tunstall angrily called Latura a “snitch bitch, ” which is a derogatory term referring to someone who cooperates with the police. One day in February, Smith’s and James’s sister, Tenisha, tried to attack Tikiyie while she was sitting in her car. They yelled and screamed at Tikiyie, calling her a “snitch bitch” and a “police bitch.” Tenisha kicked a dent into Tikiyie’s car.
On Thursday, April 9, Tikiyie and Latura received subpoenas to appear in court on April 19, 2009. Tikiyie, Latura and a few of their friends went to a night club on the following Saturday night and Sunday morning. Tikiyie wore black stiletto heeled boots, a short red dress and a red wig. Tunstall, Smith, James, Tenisha, and Kevin James were also at the night club.
There is conflicting evidence about when the group arrived at the bar. Latura testified they arrived between 9:30 and 10:00 p.m. on April 11, while Tikiyie testified they arrived at approximately 12:15 a.m. on April 12.
Tikiyie and her friends went to the bar to get a drink. Then Tikiyie went by herself into a lounge room and sat down. Tikiyie testified that Tunstall entered the lounge, looked at her, smiled and laughed, and then left. Then Smith entered the lounge. Tikiyie testified that Smith “was loud and obnoxious, calling me snitches and bitches and we’re going to get them ho’s tonight, and stuff like that.” Tikiyie testified Smith was looking at her when she made these statements. Tikiyie said she just smiled and kept drinking her drink. Smith left the lounge.
Tikiyie stayed in the lounge room for about 15 minutes and then walked into another room containing a dance floor. She passed James, who was standing with a few other people near the lounge room door. Tikiyie began talking to Kenney Martens. Tikiyie testified that Smith approached them. Smith grabbed Martens’s arm and said, “Don’t be talking to those snitch bitches. I told you about talking to snitches.” Then Smith “balled her fist up and hit me in the forehead.” Tikiyie said she swung at Smith “but I don’t think I hit her because she kept like swinging at me, and then the next thing I know Michael James grabs my dress from behind, and I fall straight back, and I’m trying to pull my dress down because I didn’t have any underwear on.” While Tikiyie was on the ground, Smith, James, Kevin and another person repeatedly hit and kicked her. She heard them call her a snitch and a bitch while they were kicking and stomping her. Tikiyie testified that “all I could do is like try to cover my face and try to pull my dress down.” Tunstall got involved in the fray. Tikiyie testified Tunstall “acted like he was pulling Demetria Smith off of me, and he socked me … in my temple.” Tikiyie testified that the attack continued until a security guard intervened about a minute or two later. The security guard helped Tikiyie get up and escorted her outside. Latura and other people also went outside.
The night club had a surveillance video system with several cameras. CD’s containing images of Tikiyie’s arrival and of the attack were played for the jury and entered into evidence. Tikiyie testified she was not able to identify James from the images as one of the attackers.
A short time later, Tunstall went outside. Tikiyie testified that Tunstall yelled, “Yeah, I hit that bitch. Yeah, I got that snitch bitch. I bet she won’t go to court and testify on that. We’re going to have your heads.” Tikiyie testified that Tunstall repeatedly called her a snitch bitch and said, “[A]ll you ho’s do is tell.” Tikiyie was angry and insulted Tunstall. Hanford police officers arrived a few minutes later. Tikiyie said she approached the officers and tried “to explain to them that I had been attacked for no apparent reason, ” but there “was so much chaos they told me to get in the car and leave” or they would arrest her.
Tikiyie drove to Latura’s house, which took about three or four minutes. She “vomited blood” twice during the drive. Latura called 911 but Tikiyie decided the ambulance was taking too long to arrive so she drove herself to the hospital. (Although Latura and several other people were in the car with Tikiyie, none of them had a driver’s license.) Tikiyie was vomiting blood and had to pull over to the side of the road. A police officer stopped the vehicle. Latura explained the situation to the officer, who escorted them to the hospital.
Tikiyie was treated in the emergency room and released. Tikiyie complained of a severe headache, nausea and vomiting. She had facial contusions with tenderness over the left temple area. She was tender in the back and upper thoracic region. There was a chip in tooth number eight. Her injuries were consistent with being punched and kicked in the head. Dr. Milton Teske testified that he believed Tikiyie suffered a concussion. Tikiyie did not suffer any acute fractures, bleeding in the brain or serious injury. She was released after being given an anti-nausea medication and Tylenol with Codeine.
Hanford Police Officer Josh Ragsdale interviewed Tikiyie while she was in the hospital. Tikiyie appeared frightened and disheveled. Tikiyie told him that she had been attacked by four people. She identified Smith, Tunstall and Kevin as three of the people who attacked her. She described the fourth person as a Black male who had dreadlocks and a long beard. Officer Ragsdale observed noticeable swelling on the left side of Tikiyie’s face and a cut on her chin. He took photographs of Tikiyie’s face and hands. She did not have any lacerations on her knuckles or the backs of her hand. Officer Ragsdale testified this was consistent Tikiyie’s statement to him that she got “jumped” and had not been in a mutual fight. Officer Ragsdale spoke with Latura, who said she did not see anything and wanted to stay out of it.
Tikiyie called Hanford Police Detective Gabriel Jimenez the next morning. Detective Jimenez had investigated the July 2008 stabbing. He interviewed Tikiyie at the police department. During this interview, she told the detective that James was one of the people who attacked her. Tikiyie testified that she wasn’t able to remember James’s name at the hospital because she “was still in shock from being attacked by men. It was bad enough being attacked by a woman.” Also, Tikiyie did not personally know James to the same degree as she knew the other defendants. Detective Jimenez subsequently showed Tikiyie a photo lineup and she identified “the defendants in this case as the attackers.”
Tikiyie testified that as a result of the attack she had two black eyes, a chipped tooth, a scar under her lip and her body was really sore all over. She wasn’t able to eat afterwards and lost about 20 pounds. Also, Tikiyie changed her mind about testifying against Yvonne. Tikiyie said that she “didn’t feel comfortable” testifying, “even though I knew it was going to help my sister.” And Tikiyie was afraid for her children’s safety.
Latura testified when they were socializing at the night club, Smith said within her presence, but not directly to her, that “she had her bitches and her niggas in the club.” Later, Latura was on the dance floor when she saw “a fight in the club and my sister she got up, and it was her getting jumped.” Latura went outside and observed a verbal altercation involving Tunstall and others. Tunstall was angry and he said things “about me going to court, about me getting stabbed, calling me snitches, [calling] my sister snitches, and just say that’s how they do them and all this and that, and things like that.”
II. Defense Evidence.
Tunstall testified he was on the dance floor when the disc jockey announced that security was needed because there was a fight. He saw a large crowd surrounding a fight. Getting closer, he saw Smith on top of Tikiyie. Kevin and a security guard were attempting to separate the two women. Tunstall told the security guard that he could remove Smith. He pulled Smith away from Tikiyie and escorted her off the dance floor. Tunstall testified that he did not hit Tikiyie and no one kicked her. He did not see James near the fight. Tunstall testified that he went outside a few minutes later. Tikiyie, Latura and some other people were yelling and arguing. Tikiyie said some things to him but he did not reply.
Martens testified that he was talking to Tikiyie when Smith approached him and pulled him aside. Smith did not say anything. While his back was turned, Smith and Tikiyie started to fight. Martens saw Tikiyie fall to the ground. Smith got on top of her. The fight stopped when Kevin got in between Tikiyie and Smith, and Tunstall pulled Smith away from Tikiyie. Martens did not see Tunstall punch Tikiyie. Martens said James was standing next to him during the altercation.
Tenisha testified that she saw Tikiyie and Martens talking. Smith approached them and pulled Martens away from Tikiyie. Tikiyie spit on Smith and hit Smith’s arm. Tikiyie and Smith started to fight. A crowd surrounded them. Tenisha testified no men were involved in the fight. Tenisha further testified that when she went outside the night club, she saw Tikiyie screaming, swearing and yelling at Tunstall.
Smith called Detective Jimenez, who testified Tikiyie told him that Smith punched her and “they tussled and went to the ground.” Tikiyie did not tell him that Smith hit and kicked her while she was on the ground. Detective Jimenez watched the video. He described it as depicting a group of males who appeared to be making kicking and swinging motions at a downward position. The video was not clear and he could not identify any of the subjects.
DISCUSSION
I. Issues Pertaining to All Appellants
A. The Batson/Wheeler motion was properly denied.
1. Facts.
Appellants are African-American.
Prospective juror No. 389, an African-American male, was in the first group of 20 prospective jurors. The court discussed the daily time schedule and asked the prospective jurors if anyone would have difficulty participating. Prospective juror No. 389 stated he taught a karate class every evening beginning at 5:00 p.m. The court asked him if he would have enough time to get to class if the jury was dismissed at 4:50 p.m. He replied affirmatively.
When prospective jurors were asked to provide occupational and educational information, prospective juror No. 389 stated that he was a retired military aircraft mechanic, had two children who were both in junior high school, and his wife was employed at a casino. In response to a question whether the prospective jurors had ever been involved in a physical altercation with another person, prospective juror No. 389 replied, “I was attacked one time. I had a guy attack me and I defended myself, ” using karate skills. In response to the question whether anyone was injured, prospective juror No. 389 replied: “Not severely. No, he was pretty sore. I didn’t hit him in any place that would actually kill him. I just defended myself, just enough to keep him off of me. That was enough.”
A total of nine jurors were excused from the first group of 20 prospective jurors. Four additional groups, consisting of nine prospective jurors each, were examined and some of the jurors were excused. Prospective juror No. 389 remained.
Prospective juror No. 399, an African-American adult female, was part of the sixth group of prospective jurors. She stated that she was married and had three children. She was a social worker employed by Kings County Human Services. Both her husband and her oldest son were correctional officers at Corcoran State Prison. Her other two children were in college. She has lived in Kings County for 15 years and had never served as a juror.
After examining the sixth group of prospective jurors, the prosecutor used a peremptory challenge for prospective juror No. 399. He passed on the next five prospective jurors and then used a peremptory challenge for prospective juror No. 389.
Outside the presence of the jury, Smith made a Batson/Wheeler motion. Tunstall and James joined in the motion. Smith’s counsel argued the prosecutor had exercised peremptory challenges to excuse three African-American potential jurors. One of these prospective jurors had a son in prison, which could indicate a potential bias against the prosecution. However, in his view there was no reason other than race explaining the decision to excuse prospective juror Nos. 389 and 399. The court found “a prima facie has been made and the burden will shift to [the prosecutor] to explain to the Court the justification for the two challenges.”
The prosecutor stated he excused prospective juror No. 399 because “her occupation as a social worker gives me grave concern. It tends to show more of a liberal bias, and that is the, one of the main reasons. [¶] Also the fact that she never has served on jury duty before in this county or any other also is a bias on which I relied upon that gave me cause for concern.” The prosecutor stated he excused prospective juror No. 389 for several reasons. His “initial response when we started the day was that he had to be somewhere at 5 o’clock, and he’s sat back there most of the day, and my thought maybe his demeanor and his attitude would change as the day went on once he reserved himself to being there, but with every peremptory, he’d lean[] back in the chair, looking up at the ceiling, yawning and his attitude really has not changed throughout most of the day whenever it got closer and closer to being a likely and a potential juror.” Next, the prosecutor explained, “I believe … he answered positive to the fact that he’s been in physical altercations involving alcohol, and … I think he stated he hasn’t served any jury duty as well.” Finally, the prosecutor considered “the next jurors in line, and balancing all the factors, and [the next prospective juror] certainly has no prior alcohol physical incidents, [and] he’s not a karate instructor who would minimize any violent conduct in the case.…”
James’s counsel argued that being a karate instructor did not make one a violent person and that prospective juror No. 389 had acted in self-defense during the physical altercation. Smith’s counsel argued prospective juror No. 389’s physical altercation was not alcohol-related and he was the victim in the incident. Further, Smith’s counsel did not think prospective juror No. 389 appeared to be disinterested and, in his view, all of the prospective jurors looked bored and impatient.
The court denied the Batson/Wheeler motion, stating: “The Court has to rule on the adequacy of the justification in this matter. If they’re implausible or fantastic justifications, then the Court can find them to be pretext. [¶] In this matter, it appears to this Court that the objections that [the prosecutor] found to [prospective juror Nos. 389 and 399] are proper in this matter. [¶] It appears that his reasons were other than … for excusing impermissible group bias or prejudice.”
2. The prosecutor’s reasons for challenging prospective juror Nos. 389 and 399 were legitimate and race neutral.
Appellants contend that the prosecutor improperly exercised peremptory challenges to exclude two African-American prospective jurors in violation of “the state Constitution’s implicit guaranty of a representative jury, … and, in the federal Constitution, the Fourteenth Amendment’s equal protection and Sixth Amendment jury trial provisions.” (People v. Jones (1998) 17 Cal.4th 279, 293.)
In Johnson v. California (2005) 545 U.S. 162, the United States Supreme Court reiterated the three-step process which guides a trial court’s constitutional review of peremptory strikes:
“… First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Id. at p. 168, fn. omitted.)
A trial court’s ruling on a Batson/Wheeler motion is reviewed for substantial evidence. (People v. Jones, supra, 17 Cal.4th at p. 293.) “‘“‘Because Wheeler motions call upon trial judges’ personal observations, we review their rulings with “considerable deference” on appeal.’”’ [Citation.] We also bear in mind that peremptory challenges are not challenges for cause—they are peremptory. We have said that such challenges may be made on an ‘apparently trivial’ or ‘highly speculative’ basis. [Citation.] Indeed, they may be made ‘“without reason or for no reason, arbitrarily and capriciously”’ [citation].” (Id. at p. 294.)
In this case, the trial court concluded a prima facie case had been made and the burden shifted to the prosecutor to provide race-neutral reasons for excusing prospective juror Nos. 389 and 399. The prosecutor stated that he chose to exclude prospective juror No. 399 because she was a social worker and he believed individuals in this occupation were more liberal. The occupation or employment of a prospective juror is generally a race-neutral reason for excluding him or her. (People v. Trevino (1997) 55 Cal.App.4th 396, 411-412 [peremptory challenges upheld for individuals employed in social services and health care]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [peremptory challenges upheld for individuals who worked in the social services or caregiving fields].) Also, the prosecutor cited the fact prospective juror No. 399 had never served on a jury before.
The prosecutor set forth several race-neutral reasons justifying his decision to excuse prospective juror No. 389. First, he was concerned by the prospective juror’s demeanor throughout the day. In addition to expressing concern about scheduling, prospective juror No. 389 appeared disinterested in the proceedings. Race-neutral reasons for peremptory challenges often invoke a juror’s demeanor, such as nervousness or inattention. (People v. Lenix (2008) 44 Cal.4th 602, 614.) “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (Id. at p. 613.) When demeanor is cited as a reason for a peremptory challenge, the trial court must evaluate if the prosecutor’s demeanor belies a discriminatory intent and if “the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” (Id. at p. 614.) Additionally, the prosecutor was concerned about this prospective juror’s involvement in a fight, and the fact he had never served on a jury before. While the prosecutor made some factual errors about the circumstances of the fight, this does not in and of itself indicate the existence of a racial bias on the prosecutor’s part. The prosecutor explained that he was concerned about the fight because it could indicate this prospective juror might “minimize any violent conduct.”
The trial court evaluated the prosecutor’s reasons and determined they were genuine and race-neutral. The court had the benefit of contemporaneous observations of voir dire. There is nothing apparent from the questions asked by the prosecutor during voir dire which raises the specter of purposeful discrimination. Since exceptional circumstances do not appear, we defer to the trial court’s credibility assessment. (People v. Lenix, supra, 44 Cal.4th at p. 614.) Accordingly, we uphold the trial court’s ruling and conclude appellants’ constitutional jury trial and fair trial rights were not infringed.
B. The motion to dismiss the jury panel was properly denied.
1. Facts.
Prospective juror No. 31 stated that he was a retired school administrator who has lived in Kings County for 45 years. His children were in their 40’s and he had adult grandchildren.
The court asked the jurors if they would promise to listen to all the testimony to assess credibility. It observed, “Okay I see all heads going up and down for the most part except for [prospective juror No. 31].” Prospective juror No. 31 stated he has personal friends who are peace officers. Further, “I was a school assistant principal for 35 years. I worked closely with peace officers as a principal. I adjudicated many kinds of problems within the school setting. And if it comes down to a credibility issue, one person’s word against the other, I’m going to go with the police officer.” When asked what he would do if law enforcement officers were called by both the prosecution and the defense, prospective juror No. 31 stated he did not understand the question. The court explained that sometimes officers testify for both the prosecution and the defense. The court stated, “See, the fact that a person’s a peace officer is just one fact to consider in making a determination.” Prospective juror No. 31 responded, “Uh-huh.” The court asked, “Can you keep an open mind and listen to the testimony?” Prospective juror No. 31 replied, “I have an open mind.”
Later, the prosecutor asked if “there [is] anybody here who doesn’t think that you would be a fair juror in this particular proceeding?” In response, prospective juror No. 31 asked if “the female defendant ever attended Lemoore schools?” The prosecutor replied that he did not know. The court asked whether he believed that was in issue in this case. Prospective juror No. 31 stated, “I had to discipline a student for fighting that -- there’s a strong resemblance.” The court elicited the information that the fight occurred 15 or 20 years ago. Prospective juror No. 31 stated, “I’ve dealt with hundreds of students, so I don’t remember names and so forth, but there’s just a resemblance that I wanted to clear up.” In response to the court’s query if this would cause him to be biased to the degree that he could not be fair and impartial, prospective juror No. 31 replied, “You know, I would still look at the facts, but I think that that would -- I would naturally think fighting then, fighting now.” He continued, “I have enough experience with people when they grow up sometimes they don’t totally grow up.” The court asked, “So most of the people you’ve dealt with back then … probably, don’t grow up?” Prospective juror No. 31 replied, “Not most, some.” The prosecutor asked if he could assume Smith was not the student from 20 years ago and “just listen to the facts here in this case?” Prospective juror No. 31 replied, “I think it might have some influence.” At this point, the court excused prospective juror No. 31 for cause.
Smith orally motioned for dismissal of the entire panel; Tunstall and James joined in the motion. Smith’s counsel argued prospective juror No. 31 had prejudiced the jury panel against Smith due to “impermissible character evidence” and the damage was compounded when he stated that some people “don’t grow up.” The prosecutor argued there had not “been any taint since the issue was briefly touched on. And in the court’s excusing this juror in the circumstances, this jury understands it’s not to be using that information.” The court denied the motion to dismiss the jury panel but offered Smith a limiting instruction. Smith’s counsel replied, “When does the Court want its answer? And the reason why I’m asking, judge, is that if the Court is denying my request to dismiss, based on how the testimony comes in, I may ask for that limiting instruction or not.” The court replied, “Okay.” Then Smith’s counsel said, “I’d like to reserve that issue.”
Following prospective juror No. 31’s excusal, numerous peremptory challenges were used and additional prospective jurors were called to take their places. The court reminded the prospective jurors of the presumption of innocence and the prosecution’s burden of proof beyond a reasonable doubt.
After the jury was sworn, the jury was instructed on the presumption of innocence and the burden of proof beyond a reasonable doubt. It was also instructed that it must “use only the evidence that is presented in the courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence.” The jury was reinstructed on these principles prior to deliberating.
Near the end of the trial, Smith orally motioned for all of her objections “starting from the beginning of the trial” to be “federalized.” The motion was granted. James and Tunstall did not join in this motion.
At no time during trial did any of the appellants request a limiting instruction directing the jury to disregard any comments made by prospective juror No. 31.
2. Denial of the motion to discharge the jury panel was not an abuse of discretion; appellants’ right to an impartial jury was not infringed.
Smith argues the trial court abused its discretion and infringed her constitutional right to a fair jury by denying her motion to dismiss the entire jury panel. Tunstall and James join in Smith’s argument. As will be explained, we review rulings on motions to dismiss a jury panel under the deferential abuse of discretion standard. We discern no error or violation of appellants’ constitutional jury trial rights.
The contention that refusal to dismiss the venire panel violated appellants’ federal constitutional right to a fair and impartial jury was not forfeited by appellants’ failure to expressly present this constitutional claim to the trial court for decision because this argument does “not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert[s] that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
A criminal defendant has the constitutional right to a determination of guilt or innocence by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) A trial court’s ruling denying a motion to dismiss the venire panel is reviewed for an abuse of discretion. (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina); People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42.) “The conclusion of a trial judge on the question of individual juror bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion.” (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466 (Martinez).) The trial judge is in a better position to gauge the level of bias and prejudice created by comments made during voir dire. (People v. Nguyen, supra, 23 Cal.App.4th at p. 41.) The totality of the circumstances surrounding jury selection is examined by the reviewing court when assessing the trial court’s exercise of discretion. (Martinez, supra, 228 Cal.App.3d at p. 1465-1466.)
Our Supreme Court’s opinion in Medina, supra, 51 Cal.3d 870, guides our resolution of this issue. There, five prospective jurors made biased and inflammatory remarks against the defendant. These remarks included statements such as even the defendant’s “‘lawyers think he’s guilty, ’“ and “‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’“ (Id. at p. 888.) The jurors who made the comments were excused and the remaining prospective jurors affirmed their abilities to be fair and impartial. Our Supreme Court affirmed the trial court’s denial of the defendant’s motion to excuse the venire panel, explaining:
“We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks…. [D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (Medina, supra, 51 Cal.3d at p. 889.)
Smith argues this issue should be decided based on the presumption of prejudice that is triggered upon a showing of juror misconduct. She principally relies on People v. Nesler (1997) 16 Cal.4th 561, which involved misconduct committed by sworn jurors during jury deliberations. We are not persuaded. The impact of biased statements made by prospective jurors on the rest of the venire is not evaluated by the same standard as juror misconduct which occurs during trial or deliberations. A presumption of prejudice resulted from juror misconduct, but not from the responses of a prospective juror to questions during voir dire. The abuse of discretion standard is applied to questions of individual and group bias during voir dire. (Martinez, supra, 228 Cal.App.3d at pp. 1463-1467.)
People v. Henderson (1980) 107 Cal.App.3d 475 (Henderson) and People v. Vernon (1979) 89 Cal.App.3d 853 (Vernon) are factually similar to the matter before us. In Vernon and Henderson prospective jurors disclosed potentially prejudicial factual information about a party during voir dire. Medina and Vernon demonstrate that a comment containing factual information about the defendant or the victim does not necessarily require the drastic remedy of discharging the venire. Further, they show that the trial court is not absolutely required to conduct an inquiry of the remaining jury venire after the prospective juror who made the prejudicial or biased remarks is excused. In neither Henderson nor Vernon was such an inquiry conducted.
In Vernon, prospective jurors were asked if anyone close to them had been a crime victim. A prospective juror responded that the defendant “had been tried for raping her niece.” (Vernon, supra, 89 Cal.App.3d at p. 865.) The court immediately excused the prospective juror on its own motion and continued with voir dire. On appeal, the defendant argued the court erred by failing to sua sponte admonish the jury to disregard the remark or declare a mistrial. The appellate court concluded admonishment “would have had a more deleterious than beneficial effect by emphasizing the remark, ” and defense counsel’s failure to request an instruction “was a wise tactical decision.” (Id. at p. 865.) Then it explained that a mistrial “should not be declared where the court is satisfied no injustice has resulted or will result. [Citations.]” (Ibid.) In light of the trial evidence, the appellate court “deem[ed] it unlikely the remarks influenced the verdict.” (Ibid.)
In Henderson, a prospective juror was excused for cause after she revealed that the victim had been her client in psychotherapy that year. The appellate court upheld the denial of the defendant’s motion to dismiss the venire panel, reasoning that “[i]t was within the sound discretion of the court to conclude the prospective juror’s statement was nonprejudicial and to refuse to dismiss the entire jury panel.” (Henderson, supra, 107 Cal.App.3d at p. 493.)
Having examined the entirety of the jury selection proceedings, we conclude the trial court properly exercised its discretion when it refused to dismiss the entire jury panel. Prospective juror No. 31’s comments about Smith’s resemblance to a former student who got in a fight 15 to 20 years ago, and his opinion that some people don’t “grow up, ” are substantially less inflammatory than were the comments considered in Henderson, Vernon and Medina. Prospective juror No. 31 did not definitely declare that Smith was the former student he remembered. His opinion that maturity levels vary is not particularly inflammatory and is within common knowledge. We reject Smith’s characterization of prospective juror No. 31 as “an authoritative, expert-like source.” The trial court was in the best position to observe the reactions of other prospective jurors to gauge the possible level of prejudice. (Martinez, supra, 228 Cal.App.3d at p. 1466.) The sworn jurors were properly instructed that it was only to consider evidence received at trial and informed evidence is sworn testimony of witnesses. It is presumed that the jury followed its instructions. (People v. Avila (2006) 38 Cal.4th 491, 574.) The jury selection system worked as intended by drawing out attitudes and biases of the prospective jurors. For these reasons, we hold denial of the motion to excuse the jury panel was not an abuse of discretion and this ruling did not infringe appellants’ constitutional rights to a fair trial and an impartial jury. (Medina, supra, 51 Cal.3d at p. 889.)
In conclusion, we mention that Smith’s reliance on Mach v. Stewart (9th Cir. 1997) 137 F.3d 630 (Mach), a federal habeas corpus proceeding following petitioner’s conviction for sexual conduct with a minor, is misplaced. “Decisions of the lower federal courts interpreting federal law, though persuasive, are not binding on state courts.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352.) Also, California law does not indulge in a presumption of jury taint or prejudice arising from a prospective juror’s remarks as the Ninth Circuit did in Mach. (Medina, supra, 51 Cal.3d at p. 889.) We are bound to follow the principles enunciated by our state’s highest court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Finally, Mach is factually distinguishable. Prospective juror No. 31’s statement that Smith resembled a student who had been in a fight 15 or 20 years ago is not comparable to an unequivocal assertion by a social worker that children do not lie about being sexually assaulted.
In Mach, a prospective juror who was a social worker with child protective services stated that she would have a difficult time being impartial because “sexual assault has been confirmed in every case in which one of her clients reported such an assault.” (Mach, supra, 137 F.3d at p. 632.) The prospective juror further stated she never became “aware of a case in which a child had lied about being sexually assaulted.” (Ibid.) The Ninth Circuit presumed that at least one juror was tainted by the prospective juror’s comments and held that excusal of the prospective juror did not adequately protect petitioner’s right to an impartial jury.
3. The confrontation clause claim was forfeited.
Smith also contends prospective juror No. 31’s statement that she resembled a student he had disciplined for fighting violated her federal constitutional confrontation right. Tunstall and James join in this argument. As will be explained, this point was not preserved for appellate review and we reject it on that basis.
“‘No procedural principle is more familiar to [the United States Supreme Court] than that a constitutional right, ’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” (United States v. Olano (1993) 507 U.S. 725, 731.) This principle is codified at Evidence Code section 353, subdivision (a). “Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.” (People v. Mattson (1990) 50 Cal.3d 826, 854.)
The contemporaneous objection rule applies to claims of state and federal constitutional error. (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.) A claim that the introduction of evidence violated the defendant’s rights under the confrontation clause must be presented to the trial court for decision or it is forfeited on direct appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Chaney (2007) 148 Cal.App.4th 772, 777-780 (Chaney).)
Numerous cases currently are pending in our Supreme Court concerning the right of confrontation under the Sixth Amendment when the results of forensic tests performed by scientists who did not testify are admitted at trial and the effect of Melendez-Diaz on California jurisprudence. (See, e.g., People v. Dungo, review granted December 2, 2009, S176886, formerly published at 176 Cal.App.4th 1388.) However, it is an accepted legal principle that a confrontation clause objection must be presented at trial or the point is forfeited on direct appellate review.
In Melendez-Diaz v. Massachusetts (2009) __ U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), the United States Supreme Court wrote, “The defendant always has the burden of raising his Confrontation Clause objection ….” (Melendez-Diaz, supra, 129 S.Ct. at p. 2541.) Furthermore, “The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2534, fn. 3.)
“… Over the years, cases have used the word [waiver] loosely to describe two related, but distinct, concepts: (1) losing a right by failing to assert it, more precisely called forfeiture; and (2) intentionally relinquishing a known right. ‘[T]he terms “waiver” and “forfeiture” have long been used interchangeably. The United States Supreme Court recently observed, however: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ [Citations.]” [Citation.]’ [Citation.]” (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371; Chaney, supra, 148 Cal.App.4th at p. 777, fn. 2.)
Here, none of the appellants raised a confrontation clause objection with sufficient specificity so the trial court could have understood and ruled on it. Appellants did not argue that their right to confront witnesses against them was infringed by prospective juror No. 31’s remarks. Smith’s “federalization” of her trial objections does not insulate her from application of the contemporaneous objection rule. Since a confrontation clause objection was not lodged for decision below, appellants forfeited direct appellate review of this point. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2534, fn. 3 & 2541.)
In Reid v. Google, Inc. (2010) 50 Cal.4th 512, our Supreme Court held that a party’s written objection to evidence made in connection with a summary judgment motion was sufficient to preserve the point for appellate review, even though the trial court had refused to rule on the evidentiary objection and the objection was not renewed at trial. We specifically note that it was not the absence of a ruling by the trial court that caused the forfeiture. Forfeiture resulted from appellants’ failure to present a confrontation clause objection for decision at any point below.
II. Issues Pertaining to James
A. The witness intimidation verdict is supported by substantial evidence.
James argues his conviction for violating section 136.1, subdivision (a)(1) is not supported by substantial evidence. We are not convinced. As will be explained, there is sufficient evidence from which a reasonable trier of fact could find beyond a reasonable doubt that James was guilty of this crime.
When reviewing a challenge to the sufficiency of the evidence, we assess the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]” (People v. Vazquez (2009) 178 Cal.App.4th 347, 352.) The testimony of a single witness is sufficient to prove a disputed fact unless the testimony is inherently improbable or physically impossible. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296.) The trier of fact makes credibility determinations and resolves factual disputes. (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) An appellate court will not substitute its evaluation of a witness’s credibility for that of the fact finder. (People v. Vazquez, supra, 178 Cal.App.4th at p. 352.) “‘Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.’ [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
Subdivision (a)(1) of section 136.1 prohibits one from knowingly and maliciously preventing or dissuading any witness or victim from attending or giving testimony at any trial or legal proceeding. This section punishes a defendant’s “efforts to prevent a victim or witness from appearing in court and giving testimony.” (People v. Fernandez (2003) 106 Cal.App.4th 943, 948.) It “requires proof that the defendant specifically intended to dissuade a witness from testifying.” (People v. Young, supra, 34 Cal.4th at p. 1210.)
James argues the record lacks proof that he committed any act or made any statement from which it could be inferred that he intended to deter Tikiyie from testifying. He argues we cannot analyze the evidence for sufficiency under the theory that he dissuaded Tikiyie by actively participating in the attack on her in the night club because the jury acquitted him of assault. Essentially, James claims the negative finding on the assault count is equivalent to a special verdict on the factual question of whether he participated in the attack. This argument is unconvincing.
An acquittal on one offense will not invalidate a verdict on a second offense, although the two verdicts are factually inconsistent. This rule is based on the realization that inconsistent findings may be caused simply by the mercy or leniency of the jury, or “through confusion or ennui.” (People v. Pettaway (1988) 206 Cal.App.3d 1312, 1325.) Thus, for example, in People v. Codina (1947) 30 Cal.2d 356, the jury acquitted the defendant of lewd and lascivious conduct but convicted him of contributing to the delinquency of a minor. The conviction was upheld even though both counts were based on the same act. The court wrote that “each count must stand upon its own merit and be weighed separately in its disposition.” (Id. at p. 361; see also People v. Gottman (1976) 64 Cal.App.3d 775, 784-785 [conviction of rape by threats of great bodily harm was affirmed, even though the jury found, in conjunction with an oral copulation charge, that the defendant did not use force or threat of great bodily harm]; People v. Lopez (1982) 131 Cal.App.3d 565, 569 [not true finding on a firearm arming enhancement is not equivalent to a special verdict on the factual question whether defendant personally used a firearm].) Thus, the not guilty verdict on counts 3 and 4 are not equivalent to a special verdict that James did not participate in the attack on Tikiyie. The jury’s verdicts on counts 3 and 4 and the not true findings on the great bodily injury enhancements do not have any “bearing upon the meaning or validity of the verdict in other counts, regardless of how similar the facts underlying each count may be. (Pen. Code, § 954.)” (People v. Keltie (1983) 148 Cal.App.3d 773, 785, fn. omitted.)
We have examined the entire record and conclude it contains substantial evidence from which a rational fact finder reasonably could determine James knowingly and maliciously dissuaded Tikiyie from testifying. Tikiyie testified that after Smith called her a “snitch bitch” and hit her on the forehead, James grabbed the back of her dress, causing her to fall on the ground. Then James and others hit and kicked her while she lay on the ground, trying to pull her dress down. Tikiyie’s testimony that James kicked and struck her is adequate to prove this disputed fact. (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Scott, supra, 21 Cal.3d at p. 296.) From the entirety of the circumstances surrounding the attack on Tikiyie, a rational trier of fact could reasonably find that one of the purposes of the beating was to dissuade Tikiyie from testifying against Yvonne, and that James shared the intent and purpose of the other participants in the attack. The prosecutor asked Tikiyie, “were the people who were attacking you, the defendants, saying anything?” Tikiyie replied, “They were calling me snitches and bitches, and I just remember hearing snitches bitches, and I remember hearing a lot of like -- a lot of like kicking sounds.” Accordingly, we reject James’s challenge to the sufficiency of the evidence.
B. The trial court did not abuse its discretion when it sentenced James.
1. Facts.
James’ probation report reflects that he suffered juvenile adjudications in 1986, 1987 and 1989 for, inter alia, possessing stolen property and battery. As an adult, he was convicted in 1990 of battery. He was placed on three years’ probation and sentenced to 90 days in jail. He violated the terms of his probation later that year. In 1991, James was convicted of attempted murder with a firearm. He was sentenced to 10 years imprisonment and was paroled in 1996. In 1998, he was convicted of robbery and second degree burglary. He was sentenced to 10 years imprisonment and paroled in 2006. James was on parole when he committed the current crime. The probation report states that James “showed no remorse for the victim and [he] specifically stated, ‘don’t know what I am being punished for.’” (Italics omitted.)
James filed a motion to reduce his conviction to a misdemeanor (the reduction motion) and to dismiss the prior felony convictions in the interest of justice pursuant to People v. Superior Court(Romero) (1996) 13 Cal.4th 497 (Romero) (the Romero motion). Both motions were heard and denied during the sentencing hearing. The court explained its reasons for denying the reduction motion, as follows: “… [T]he Court has considered the [§] 17(b) motion, considered the facts of the case that it heard at trial, as well as those set forth in the report. [¶] And while defendant’s actions are not as egregious -- excuse me, are not as substantial physically as the other two codefendants in this matter, his participation obviously in a crime of this type is egregious. [¶] This Court, as stated, has considered it. It cho[o]ses not to exercise its discretion to make this a misdemeanor given the seriousness of the incident.” When ruling on the Romero motion, the court stated that it had considered the factors set forth in Romero, supra, 13 Cal.4th 497, and its sentencing responsibilities under the California Rules of Court, People v. Orin (1975) 13 Cal.3d 937, and People v. Burke (1956) 47 Cal.2d 45. Then it explained:
“And those responsibilities for sentencing are for the Court to take into consideration not only society’s purpose in this matter, but before it exercises its discretion to take in the totality of the situations in these matters; not just the conduct in the specific crime in which it is sentencing the defendant.
“I note that the age of the defendant’s priors, and I note that he has never been off probation or parole since he was a juvenile. Picking the last juvenile one, it’s a battery, a [§] 242. Even though it’s a misdemeanor charge, it shows violence, and his wardship was terminated in January of 1990.
“And then one month later he’s arrested for another battery as an adult. He gets reinstated on probation after a violation of 1991 of March, and less than four months later in July of ‘91 out of Fresno he has an attempted murder. He gets paroled November 10th, 1996, and less than two years later, in July of 1998, there’s a robbery, violation of [§] 211, as well as a second degree burglary.
“He gets put on parole in June 13th of 2006, and less than three years later we have this offense. I do note that the defendant is 37 years of age, but looking at his record he is a career criminal. The participation, the jury may have found, has been less than a [§] 136(1) … (c) offense, but these crimes for which he was found guilty are in no means insignificant.
“Defendant does face a substantial sentence, but the defendant is, his background, his character, I’ve considered the letters in his support; however, he cannot be deemed to be outside the spirit of the Three Strikes Law. If I were to focus strictly on the finding of the jury in this matter, it’s quite possible that a middle sentence would be appropriate; however, the Three Strikes Law was put in place by the legislature and by the People of the State of California for the Court to punish recidivism, and before the Court exercises its discretion to strike strikes, it has to take everything into consideration for which I’ve done.”
2. Denial of the reduction motion was not an abuse of discretion.
The crime of dissuading a witness in violation of section 136.1, subdivision (a)(1) may be punished either by incarceration in a county jail or prison for one year. Section 17, subdivision (b) grants trial courts discretion to treat a crime punishable either as a felony or a misdemeanor, also known as a wobbler, as a misdemeanor. Wobblers that are classified as misdemeanors at the time of sentencing do not trigger increased penalties under the three strikes law. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979 (Alvarez).) Proper exercise of discretion under section 17 involves “an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration; and the record must so reflect.” (Alvarez, supra, at pp. 981-982.) Relevant factors include the defendant’s criminal history, “‘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.’ [Citations.]” (Id. at p. 978.) On review, we apply “the extremely deferential and restrained” abuse of discretion standard. (Id. at p. 981.) “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
We discern no abuse of discretion. The trial court stated that it considered the circumstances of the crime and the contents of the probation report. The probation report included James’s criminal history and his attitude towards the offense and offender. Thus, the trial court made an individualized decision based on an assessment of the factors enumerated in Alvarez, supra, 14 Cal.4th at page 978. We reject James’ assertion that the trial court’s remark that his participation “in a crime of this type is egregious” evidences a refusal to “honor[] the spirit of Alvarez.” The trial court did not consider witness intimidation to be per se egregious. It concluded this particular crime was egregious and we agree with this conclusion. The attack on Tikiyie was a brutal way of dissuading her from testifying. Tikiyie was publicly beaten by multiple perpetrators in a particularly humiliating manner. She testified James was one of the men who hit and kicked her while she was on the ground trying to pull down her dress. James’s absence of remorse or empathy for the victim and his substantial criminal history further supports the trial court’s decision. At no point in James’s adult life has he been free from probation or parole. His prior adult convictions involve violent offenses such as attempted murder and robbery. He was on parole when he committed the current crime. Denial of the reduction motion was fully supported by the record and we discern no error or abuse of discretion.
3. Denial of the Romero motion was not an abuse of discretion.
In ruling on a request to dismiss a prior strike conviction in the interests of justice, the court must conduct a fact-based inquiry to determine whether the defendant falls outside the spirit of the three strikes law. Relevant factors include the nature of the present offense, defendant’s prior criminal history, the defendant’s background, character and prospects, as well as other individualized considerations. (People v. Williams (1998) 17 Cal.4th 148, 161; People v. Philpot (2004) 122 Cal.App.4th 893, 905 (Philpot).) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) The burden is on the party attacking the sentence to demonstrate that the lower court’s decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
James argues the trial court abused its discretion because it did not give adequate weight to his recent “efforts at law-abiding behavior.” James points out that he remained free from criminality from 2006 to 2009, was employed before his arrest, and was in a stable romantic relationship. We are not persuaded. Essentially, appellant is asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. (People v. Myers, supra, 69 Cal.App.4th at p. 310.) The trial court is not required to articulate every one of the factors it considered. (Ibid.) The fact that the court focused its comments on James’s prior criminal history does not mean this is the only factor it considered. (Ibid.)
The record fully supports the trial court’s conclusion that James does not fall outside the spirit of the three strikes law. His criminal history spans over 20 years. It includes violent felonies such as attempted murder and robbery. The current offense involved violence. Probation, parole, short jail sentences and lengthy prison terms have all failed to eradicate his recidivism. James’s “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for [him].” (Philpot, supra, 122 Cal.App.4th at p. 906.) We concur in the trial court’s determination that James was not outside the spirit of the three strikes law. Therefore, denial of the Romero motion was not an abuse of discretion. (Id. at p. 907.)
III. Issue Pertaining to Smith and Tunstall
A. Section 654 was not applied correctly.
1. Facts.
Smith was convicted of two counts of witness intimidation (counts 1 and 2), one count of felony assault (count 3) and one count of making a criminal threat (count 4). The court imposed separate punishment for counts 1, 2 and 3. It stayed punishment for count 4 pursuant to 654. On count 2, she was sentenced to the upper term of four years, doubled for the prior strike, plus three years for the great bodily injury enhancement, plus five years for the prior conviction and one year for the prior prison term. On count 3, she was sentenced to two years, plus one year for the great bodily injury enhancement. The sentence on count 3 was ordered to run consecutive to the sentence imposed for count 2. On count 1, she was sentenced to the midterm of three years, doubled for the prior strike. The sentence on count 1 was ordered to run concurrent to the sentence imposed for count 2. The court concluded section 654 did not apply to count 2 because “it was distinct and separate.”
Tunstall was convicted of one count of witness intimidation (count 2), one count of felony assault (count 3) and one count of making a criminal threat (count 4). Separate punishment was imposed on all counts. On count 2, Tunstall was sentenced to the midterm of three-years plus a consecutive three year term for the great bodily injury enhancement. On count 3, he was sentenced to the midterm of three years plus a consecutive three-year term for the great bodily injury enhancement. The court ordered the sentence imposed for count 3 to run concurrent with the sentence imposed for count 2 because the assault “in this matter went hand and glove, so to speak, within a short period of time; very short period of time ….” On count 4, Tunstall was sentenced to eight months plus a consecutive one-year term for the great bodily injury enhancement. It ordered the sentence imposed for count 4 to run consecutive to the term imposed for count 2. The court found that section 654 did not require punishment on count 4 to be stayed because the criminal threats were “distinct from the action on the dance floor.”
In its brief, respondent wrote Tunstall was sentenced on count 3 to a concurrent three-year term. Later, respondent wrote that great bodily injury enhancements were imposed on counts 2 and 4. This is not correct. The reporter’s transcript of the sentencing hearing and the abstract of judgment both reflect that Tunstall was sentenced on count 3 to three years plus three years for the great bodily injury enhancement.
2. The legal principles surrounding application of section 654 are well-established.
In pertinent part, section 654, subdivision (a), provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of this section is to ensure that a defendant’s punishment is commensurate with his criminal liablity. (Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal).)
Section 654 has been interpreted to prohibit multiple punishments for a single act as well as an indivisible course of conduct. (Neal, supra, 55 Cal.2d at p. 19.) “Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offense but not for more than one.” (Ibid.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Whether a course of conduct is indivisible depends on a defendant’s intent and objective, not temporal proximity of offenses. (People v. Hicks (1993) 6 Cal.4th 784, 788-789; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]” (People v. Snaffle (1992) 4 Cal.App.4th 434, 438.)
3. Section 654 prohibits separate punishment for counts 1 and 4.
Smith argues the witness intimidation that occurred at the night club was not divisible. Therefore, she cannot be punished for both counts 1 and 2. Applying the same reasoning, Tunstall argues he cannot be punished for both witness intimidation and making criminal threats. We agree.
“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.” (People v. Salvato (1991) 234 Cal.App.3d 872, 883.)
The evidence shows Smith and Tunstall engaged in a continuing course of conduct at the night club intended to dissuade Tikiyie from testifying. Smith’s statements to Tikiyie in the lounge room, the attack on Tikiyie that occurred about 15 minutes later, and Tunstall’s threats to Tikiyie outside the bar soon after the attack, were all part of a continuing course of action taken to produce the goal of dissuading Tikiyie from testifying. The slight temporal and spatial separation between the various incidents that occurred at the night club is not a determinative factor in this case because the gravamen of the crime of witness intimidation is the cumulative outcome of the acts rather than any particular action taken to produce the outcome. (People v. Salvato, supra, 234 Cal.App.3d at p. 883.) Therefore, Smith can be punished for only one of the section 136.1 convictions; the concurrent term imposed for count 1 must be stayed pursuant to section 654. The court properly stayed count 4 when sentencing Smith; section 654 compels the same result for Tunstall. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346 [section 654 prohibited imposition of separate punishment for criminal threat and dissuading a witness convictions because the two crimes arose from a single act and were motivated by the same primary objective].)
4. Section 654 does not prohibit separate punishment for count 2.
Smith and Tunstall also argue they cannot be separately punished for assault because this crime was committed with the intent and objective of dissuading Tikiyie from testifying. We are not convinced.
In People v. Nguyen (1988) 204 Cal.App.3d 181, the defendant and an accomplice robbed a market. The accomplice took the clerk into a bathroom, removed the money from his pockets and forced him to lie on the floor. The defendant opened the cash register and shouted a Vietnamese battle cry. The accomplice kicked the clerk and shot him in the back. The clerk survived. The defendant was convicted of robbery and attempted murder as an aider and abettor. The appellate court upheld imposition of separate punishment for both crimes. It reasoned that the shooting constituted an act of gratuitous violence against a helpless and unresisting victim that was sufficiently divisible from the robbery to justify multiple punishments. (Id. at pp. 189-193.)
As in People v. Nguyen, supra, 204 Cal.App.3d 181, the attack on Tikiyie was an extreme and gratuitous act of violence that went beyond what could reasonably be characterized as necessary to intimidate Tikiyie and convince her not to testify against Yvonne. The evidence supports the trial court’s implied finding that that the assault was a gratuitous act of violence intended, in part, to hurt Tikiyie and it was not incidental to the witness intimidation. Under the circumstances presented here, we conclude that the assault is sufficiently divisible from the witness intimidation to permit imposition of separate punishment for both crimes. (Id. at p. 193.)
5. Only one great bodily injury enhancement can be imposed.
Smith and Tunstall argue only one great bodily injury enhancement can be imposed because there was only one act of violence involving one victim. Respondent concedes this point, writing: “Both Smith and Tunstall inflicted great bodily injury upon a single victim in connection with the assault. There was no evidence presented that great bodily injury was separately applied during commission of any of the other charged offenses. It therefore should be concluded that the circumstances of this case permit only one great bodily injury enhancement.” We accept this concession as properly made. (People v. Reeves (2001) 91 Cal.App.4th 14, 56-57.)
DISPOSITION
The judgment pertaining to Michael James is affirmed.
The judgment pertaining to Demetria Rochelle Smith is modified to stay the sentence imposed for count 1 and the great bodily injury enhancement attached to count 3 pursuant to section 654. As modified, the judgment is affirmed. The superior court is ordered to prepare an abstract of judgment reflecting the sentencing modifications and to transmit a certified copy of it to the appropriate authorities
The judgment pertaining to Coleridge Jerome Tunstall is modified to stay the sentence imposed for count 4 and the great bodily injury attached to count 3 pursuant to section 654. As modified, the judgment is affirmed. The superior court is ordered to prepare an abstract of judgment reflecting the sentencing modifications and to transmit a certified copy of it to the appropriate authorities.
WE CONCUR: CORNELL, J., FRANSON, J.