P. v. Canela

Filed 2/16/07  P. v. Canela CA4/1

NOTTO BE PUBLISHED IN OFFICIAL REPORTS

CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b).  This opinion has not been certified forpublication or ordered published for purposes of rule 977.

COURTOF APPEAL, FOURTH APPELLATE DISTRICT

DIVISIONONE

STATEOF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San DiegoCounty, Frank A. Brown, Judge.  Affirmed.

            A jury convicted Gerardo Canela with attempted unlawful taking of a vehicle(Veh. Code, § 10851, subd. (a), Penal Code, § 664^[1])and dissuading a witness by force orthreat (§ 136.1, subd. (c)(1)).  Canela admitted allegations that he hadsuffered a felony conviction that constituted both a serious felony prior and astrike prior (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 668, 1170.12, 1192.7,subd. (c)).  The court sentenced him to a total term of 11 years 8 months inprison.  On appeal, Canela contends there is insufficient evidence to supporthis conviction under section 136.1, subdivision (c)(1) for preventing or dissuadinga witness by force or threat.  He further contends the court erred by failingto instruct the jury on making a threat to a witness under section 140 as alesser included offense of preventing or dissuading a witness under section136.1.  We reject these contentions and affirm the judgment.

FACTUAL ANDPROCEDURAL BACKGROUND         

            Early in the morning of January 26, 2005, Jesus S., then 16 years old, saw Canela trying to jump start a car on the street andcalled police to report what he believed was a crime.  Jesus recognized Canelabecause they lived within four or five houses from each other, and he knew himto be an older Logan gang member.  Jesus, who had been a member of a gang andhad associated with gang members in the past, asked the operator not to havepolice officers come to his house; he did not want Canela to find out he hadcalled police and was scared for himself and his family given what happened topeople who reported other gang members to police.  After police officersdetained Canela, they transported Jesus to a location where he identifiedCanela as the offender. 

            A few weeks after Jesus made the call to police,he appeared in court with his father and sister in response to a subpoena totestify as a witness at the preliminary hearing for Canela's attempted autotheft case.  Jesus had previously told the prosecutor he did not want totestify because he was scared of something happening.  The prosecutor did not callJesus to testify on that day but asked him and his family members to waitoutside the courtroom so she could speak with them.  After the hearing, Jesuswas in the hallway outside the courtroom with his father and sister, two policeofficers and the district attorney when Canela, handcuffed with other inmatesand escorted by a deputy, passed by about eight feet away.  Jesus looked upwhen he heard a voice and saw Canela, who said, "Thanks for getting melocked up.  I see what kind of homey you are."  Canela also said, "Trucha,"which means "Be careful" or "Watch out" in Spanish.  Theprosecutor, who was fluent in Spanish, heard Canela say, "Thanks a lot,dog" and "I'm going to get you, dog."  She also heard somethingabout a phone call but could not remember Canela's exact words.  Canela was staringat Jesus threateningly and sounded angry and scolding, and Jesus took Canela'sstatement as a message to "Be careful because you ratted me out, yousnitch on me," and that "something's going to happen."  Jesus respondedby saying, "I'm not going to testify.  I'm not going to do this."  BecauseJesus and his family members were fearful, the deputy escorted them to thevictim-witness program office and then took them to their residence, whereJesus got some belongings and moved out.  Jesus never went back to live withhis parents after the incident and, at the time of trial, he was not livingnear the area. 

            Because of the way Canela looked at Jesus andshook his head while he spoke, Jesus took Canela's statement as a threat. Jesus believed that even though Canela was in custody, he could have somebodyelse do something to him and his family.

DISCUSSION

I. Substantial Evidence

            Canela contends insufficientevidence supports his conviction for attempting to prevent or dissuade awitness from attending or testifying at trial by force or threat under section136.1, subdivision (c)(1).^[2]  Heargues the evidence at trial shows he was guilty only of a violation of section140, which punishes threatening a witness because that person has providedassistance or information to a law enforcement officer or a public prosecutorin a criminal proceeding.^[3]  Pointingout a violation of section 136.1, subdivision (c) is a specific intent crime,Canela maintains there is no evidence from which a jury could infer he harboredthe requisite specific intent in that there is no evidence whatsoever that atthe time Jesus was assertedly threatened he was presently a trial witness orscheduled to be a witness at trial, or that Canela knew the next step in hisproceedings would be a trial.  Instead, Canela argues the evidence shows onlythat he threatened Jesus because of his prior cooperation with police.

            "In addressing a challenge to thesufficiency of the evidence supporting a conviction, the reviewing court mustexamine the whole record in the light most favorable to the judgment todetermine whether it discloses substantial evidence –evidence that isreasonable, credible and of solid value – such that a reasonable trier of factcould find the defendant guilty beyond a reasonable doubt.  [Citation.]  Theappellate court presumes in support of the judgment the existence of every factthe trier could reasonably deduce from the evidence.  [Citations.]  The samestandard applies when the conviction rests primarily on circumstantialevidence.  [Citation.]  Although it is the jury's duty to acquit a defendant ifit finds the circumstantial evidence susceptible of two reasonableinterpretations, one of which suggests guilt and the other innocence, it is thejury, not the appellate court that must be convinced of the defendant's guiltbeyond a reasonable doubt.  [Citation.]  ' "If the circumstancesreasonably justify the trier of fact's findings, the opinion of the reviewingcourt that the circumstances might also reasonably be reconciled with acontrary finding does not warrant a reversal of the judgment." ' "  (Peoplev. Kraft (2000) 23 Cal.4th 978, 1053-1054.)  In making our determination,we do not reweigh the evidence; the credibility of witnesses and the weight tobe accorded to the evidence are matters exclusively within the province of thetrier of fact.  (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)  Wewill not reverse unless it clearly appears that on no hypothesis whatever isthere sufficient substantial evidence to support the jury's verdict.  (Peoplev. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart, atp. 790.)

            Applying these standards compels us to rejectCanela's challenge to the sufficiency of the evidence.  We observe first thatCanela's arguments do not extend to whether his comments constituted a threat,whether they constituted a threat to use force or violence against Jesus, orwhether the evidence is sufficient to demonstrate the requisite malice for asection 136.1 violation.  We need not address whether the evidence issufficient to support those elements.  Rather, Canela's appellate challenge islimited to whether the evidence showed he knew Jesus would be a future witnessagainst him at a trial.  As to this narrow contention, we reject the assertionthat the evidence supporting Canela's section 136.1 conviction fails for thelack of a showing that Canela knew he was facing a trial.       

            As the People point out, section 136.1 isdirected to attempts to prevent or dissuade a witness from testifying not onlyat a trial, but "at any . . . proceeding, or inquiry authorized by law." (§ 136.1, subd. (a)(2), italics added.)  The People were thus not requiredto present direct evidence that Canela knew he was facing trial or thathe or Jesus knew he would be called as a witness for trial.  Canela admitsbeing present at his preliminary hearing during which the prosecutor questionedpolice officers about Jesus's positive identification of Canela as the perpetratorof the attempted auto theft, and thus Canela was well aware that Jesus was theeyewitness.^[4] Thereafter, the court ordered Canela to appear "for further proceedings"on the matter, subject to, among other things, issuance of a bench warrant forhis arrest if he failed to appear.  At Canela's trial, the prosecutor testifiedabout the preliminary hearing, her intent to call Jesus as a witness in thatproceeding and her decision not to do so.  The evidence showed Canela spottedJesus waiting in the hallway just outside the courtroom after the preliminaryhearing had concluded and directed his statements at Jesus to, among otherthings, "Watch out." 

            Assessing the entire record and presuming insupport of the judgment the existence of every fact that can reasonably bededuced from the evidence, we conclude a jury could reasonably conclude it wasreadily apparent to Canela that Jesus was present as a potential witnessagainst him, in whatever upcoming proceeding was scheduled at which Canela wasordered to appear by the court, and that Canela's statements were made toprevent Jesus from giving that testimony.  In our view, Canela's arguments, andthe circumstances of this case, are sufficiently analogous to those presentedin People v. Mendoza (1997) 59 Cal.App.4th 1333 (Mendoza), Peoplev. Ford (1983) 145 Cal.App.3d 985 (Ford), on which Mendoza relies,and People v. Young, supra, 34 Cal.4th 1149 to compel ourconclusion.  In Mendoza, the defendant claimed his statements to awitness that she had " 'fucked up his brother's testimony,' " andthat he was " 'going to talk to some guys from [the] Happy Town [criminalstreet gang],' " were insufficient to constitute a violation of section136.1 because they referred to the witness's past testimony and not herupcoming testimony at his brother's trial.  (Mendoza, at p. 1343.)  Thecourt of appeal rejected that argument, comparing the circumstances to Ford,in which the defendant claimed his statement to a preliminary hearing witness, "'You punk mother fucker, we'll get you, you've got kids' " (Ford,145 Cal.App.3d at p. 987) was made in retaliation for the witness's pasttestimony, not an attempt to prevent the witness from giving further testimonyin the future.

            The Mendoza court relied on Ford'sanalysis to reject the arguments in that case: 

" 'The words "You punk mother fucker, we'll getyou, you've got kids," have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation whichplainly suggests to the auditor, "You are in trouble for testifying so donot let it happen again or things will only get worse."  The jury could interpretthe defendant's remarks to [the witness] as a warning or threat not to testifyin the future.' "  (Mendoza, supra, 59 Cal.App.4th at p.1344.)  The Mendoza court concluded that the fact the defendant'scomments in its case only referred to the witness's past testimony did notimmunize him from being found guilty for attempting to dissuade her from givingtestimony in the future.  (Ibid.)  The court noted the witness had justtestified and was expected to be a witness at the upcoming murder trial, andthat a reasonable interpretation of the defendant's words about talking to someguys from the Happy Town gang was,

" 'your testimony had already seriously damaged mybrother in his murder prosecution.  I'll get my fellow gang members to soinjure or intimidate you, you won't repeat your performance at his trial.' " (Ibid.)  The court reasoned:  " 'There is, of course, no talismanicrequirement that a defendant must say "Don't testify" or wordstantamount thereto, in order to commit the charged offenses.  As long as hiswords or actions support the inference that he . . . attempted by threat offorce to induce a person to withhold testimony [citation], a defendant isproperly' convicted of a violation of section 136.1, subdivision (c)(1)." (Mendoza, at p. 1344.) 

            In People v. Young, supra, 34Cal.4th 1149, the California Supreme Court held sufficient evidence supported asection 136.1 offense where the defendant punched another person (Ross) in aholding cell and told him, " 'I should have killed you' " because helearned he had " 'snitched' " on him.  (Id. at p. 1210.)  Thecourt reasoned, "Jurors reasonably could have drawn the inference that themessage Ross received from defendant's retribution for Ross's past cooperationwith the police was that defendant would again harm him physically if hecontinued to cooperate in the future (e.g., by testifying at trial). . . . Defendant knew from his attorney that Ross was cooperating with the police, andthat he expected Ross to testify at trial can be reasonably inferred."  (Id.at pp. 1210-1211.) 

            We see no significant difference between thesituations in Mendoza, Ford, and People v. Young in whichthe witnesses had recently testified at the defendant's preliminary hearing orcooperated with police, and this case, in which Canela knew Jesus was thewitness to his crime and had identified Canela to police, and saw Jesus presentin the courthouse immediately after his preliminary hearing.  A jury couldreasonably conclude that Jesus's past cooperation with police and his presencein court on the day of Canela's preliminary hearing was enough to tip Canelaoff to the fact that Jesus could be a witness against him at his upcomingproceeding, and a rational juror could infer from the evidence presented attrial that Canela's threatening words were an attempt to prevent Jesus from cooperatingagain, i.e., giving damaging testimony in a future proceeding or trial.  (See Mendoza,supra, 59 Cal.App.4th at pp. 1344-1345; People v. Young, supra,34 Cal.4th at p. 1210.)  As we have stated, toreverse a conviction for insufficiency of the evidence it must clearly appearthat on no hypothesis whatever is there sufficient substantial evidence tosupport it.  (People v. Stewart, supra, 77 Cal.App.4th at p.790.)  Canela has not shown that to be the case here.  Accordingly, weconclude the evidence was sufficient to support Canela's conviction of theoffense of attempting to prevent or dissuade a witness under section 136.1,subdivision (c)(1).

II.  Failure toInstruct on Threatening a Witness as a Lesser Included Offense

            Canela contends the court prejudicially erred byrefusing to instruct the jury with the crime of threatening a witness undersection 140 as a lesser included offense of dissuading a witness from attendingor testifying at trial.  Specifically, Canela maintains an offense undersection 136.1, subdivision (c)(1) could not be committed without necessarilycommitting a section 140 violation.  He also argues the charging allegationsdescribe the offense in such a way that, if committed as alleged, the lesseroffense must necessarily have been committed. 

            The court did not err in refusing theinstruction.  "We apply the independent or de novo standard ofreview to the failure by the trial court to instruct on an assertedly lesserincluded offense.  [Citation.]  A trial court must instruct the jury sua sponte on a lesserincluded offense only if there is substantial evidence, '"that is, evidence that a reasonable jury could find persuasive" '  [citation],which, if accepted, ' "would absolve [the] defendant from guilt of thegreater offense" [citation] but not the lesser.' "  (Peoplev. Cole (2004) 33 Cal.4th 1158, 1218.)  "[A] lesser offense isnecessarily included in a greater offense if either the statutory elements ofthe greater offense, or the facts actually alleged in the accusatory pleading,include all the elements of the lesser offense, such that the greater cannot becommitted without also committing the lesser."  (People v. Birks (1998)19 Cal.4th 108, 117; see also People v. Moon (2005) 37 Cal.4th 1, 25-26.) The determination that an offense is a lesser included offense of a chargedoffense is determined in the abstract: "[t]he evidence actually introducedat trial is irrelevant to the determination of the status of an offense aslesser included."  (People v. Wright (1996) 52 Cal.App.4th 203,208; see also People v. Escarcega (1974) 43 Cal.App.3d 391, 396.)

            In People v. McDaniel (1994) 22Cal.App.4th 278, the court distinguished the offenses under section 136.1 and140 in the context of explaining that the section 136.1 offense is a specificintent crime, whereas the crime under section 140 is not:  "Section 136.1 proscribes preventing or dissuading awitness or victim from testifying or doing other enumerated acts.  Unless thedefendant's acts or statements are intended to affect or influence a potentialwitness' or victim's testimony or acts, no crime has been committed under thissection.  [Citation.]  Since the definition refers to a defendant's intent toachieve some further or additional consequence, section 136.1 is a specificintent crime.  [Citation.]  [¶]  Theacts proscribed in section 140, to the contrary, take place because thewitness, victim, or informant has provided information or assistance to a lawenforcement officer.  The statute is retrospective rather than prospective andproscribes acts which are retaliatory rather than acts to intimidate.  Itdefines only a description of the particular act of threatening to use force orviolence, or taking, damaging, or destroying property, without reference to anintent to do a further act or achieve a future consequence."  (Peoplev. McDaniel, supra, 22 Cal.App.4th at p. 284.)  In People v.Womack (1995) 40 Cal.App.4th 926, 931, the court emphasized the prospectivenature of the section 136.1 offense; it "clearly contemplate[s] that theperpetrator will prevent or dissuade a prospective witness from giving testimony,or will attempt to do so."  (See also Ford, supra, 145Cal.App.3d at pp. 989-990; People v. Fernandez (2003) 106 Cal.App.4th943, 948-949.) 

            Looking to the statutory elements of the crimes,we conclude the conduct prohibited by section 136.1 could occur withoutnecessarily also violating section 140.  Ofcourse, a threat may involve both retaliation for past help to law enforcementand intimidation to prevent future help.  (See Mendoza, supra, 59Cal.App.4th at pp. 1343-1345.)  However, it is certainly possible for anoffender to issue a threat intending to affect or influence a potential witnessto deter them from testifying in a future proceeding (e.g., "You're dead ifI see you take the stand at my trial"), without also threatening them inretaliation for having previously provided assistance or information to a lawenforcement officer or public prosecutor.  Thus, the elements of section 136.1,subdivision (c)(1) do not necessarily include the elements of section 140.

            Turning to an examination of the accusatory pleading, we reach the same conclusion. In the information, the prosecution alleges:  "On or about February 10, 2005, Gerardo Canela did knowingly, maliciously and unlawfully prevent anddissuade and attempt to prevent and dissuade Jesus S., a victim of and witnessto a crime, from attending and giving testimonyat trial, proceeding and inquiry authorized by law said offense having beenaccompanied by force and an express and implied threat of force and violenceupon a victim, witness and another person, and the property of a victim,witness and another person, in violation of Penal Code section 136.1[,subdivision] (c)(1)."  (Upper case omitted.)  This allegation adds nothingto the statutory elements, and it plainly does not describe the section 136.1 offense in language such that Canela,if guilty, must necessarilyhave also committed the section 140 offense.  (People v. Moon, supra,37 Cal.4th at pp. 25-26.)

DISPOSITION

            The judgment isaffirmed.

O'ROURKE, J.

WE CONCUR:

                          McCONNELL,P. J.

                                          BENKE,J.

Publication Courtesy of SanDiego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.