P. v. >Martinez>



















Filed 6/19/13 P. v. Martinez CA2/4















NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR




>

THE PEOPLE, Plaintiff and Respondent, v. ROGELIO MARTINEZ, Defendant and Appellant.

B237663 (Los Angeles County Super. Ct. No. VA119368)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Roger Ito, Judge.
Affirmed.

Sarah A. Stockwell, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.



>_________________________________________

>

Appellant
Rogelio Martinez appeals his conviction on two counts of href="http://www.mcmillanlaw.com/">criminal threats (Pen. Code, § 422);href="#_ftn1" name="_ftnref1" title="">[1] one count of href="http://www.fearnotlaw.com/">dissuading a witness by force or threat of
force or violence (§136.1, subd. (c)(1)); one misdemeanor count of href="http://www.mcmillanlaw.com/">cruelty to a child by inflicting injury
(§ 273a, subd. (b)); one count of child
abuse (§ 273a, subd. (a)); and one misdemeanor count of battery (§ 243,
subd. (e)(1)). Appellant contends the
court erred in failing to give a unanimity instruction with respect to the
charges of criminal threats and dissuading a witness. Alternatively, he argues that if the crimes
constituted a continuous course of conduct, section 654 applies and the
sentences on two counts must be stayed.
He also claims he is entitled to additional conduct credit under the
current version of section 4019. We find
no error and affirm the judgment.

>FACTUAL AND PROCEDURAL SUMMARY

Appellant
and Elsa A. had three daughters together, Sandra, Suleyma, and Guadalupe. Appellant had not lived with them for
approximately 10 years. On the evening
of April 10, 2011,
appellant went to their home. The
weather was hot, so the door was open, and he just walked in. Elsa was in the kitchen, Sandra and
15-year-old Guadalupe were in one bedroom, and 16-year-old Suleyma was in
another bedroom watching television.
According to Guadalupe, Elsa told appellant to leave because he was
“tipsy.” He complained that the
television was too loud. Then he walked
to the room where Suleyma was watching television and screamed at her to turn
the volume down. Elsa told him he should
not get upset, that she was the one who made the rules. Appellant slapped Elsa on the right side of
her face with an open hand. Guadalupe
saw this happen from the doorway of the bedroom.

Suleyma
heard her mother scream and walked quickly into the kitchen where she saw her
mother holding her cheek and crying.
Suleyma told appellant she was “tired of this” and was going to call the
police. Appellant replied, “‘Oh, you’re
gonna call the cops? Then I’m gonna kill
your mom right here so I can have a reason to go to jail because I’m not going
to jail for just hitting you guys. I’m
gonna go because I’ll kill her. That’s
going to be a good reason.’” Suleyma
dialed 911 on her cell phone. Appellant
told her he would kill her if she called the cops, then grabbed her phone and
threw it on the floor. The phone
broke.

Appellant
tried to hit Elsa, then he took a knife from the kitchen and tried to stab
her. Suleyma struggled with appellant
and eventually got the knife from him.
She told him she hated him, and he should go to jail because what he was
doing was bad. Appellant said he was
going to kill them if they did anything, and threatened to shoot Suleyma with a
gun. He punched Suleyma at the top of
her shoulder and attempted to leave the house.
Guadalupe was in his way, so he shoved her against the wall and “socked”
her on the lip. She “went down” and he
kicked her in the ribs. Appellant left
the house, stating he was going to get his gun.
Suleyma called 911 from her mother’s cell phone.

Appellant
was not at the house when Los Angeles County Sheriff’s deputies responded to
the 911 call. They returned to the house
after receiving a call that appellant had returned.

Appellant
was arrested and charged by information with criminal threats against Elsa and
Suleyma (counts 1 and 3); dissuading a witness by force or threat as to Suleyma
(count 4); misdemeanor cruelty to a child by inflicting injury against Suleyma
(count 5); felony child abuse against Guadalupe (count 6); and misdemeanor
battery against Elsa (count 7). The
information also alleged two prior prison terms and a prior strike conviction. After a jury trial, appellant was convicted
as charged and the prior convictions were found true. This is a timely appeal from the judgment.

>DISCUSSION

>I

Appellant
was charged in count 3 with criminal threats against Suleyma; in count 4 with
dissuading a witness by force or threat against Suleyma; and in count 5 with
cruelty to a child by inflicting injury.
Appellant claims there was evidence of multiple discrete acts to support
each of these counts, and hence a unanimity instruction should have been given
as to each count.

In
a criminal case, a jury verdict must be unanimous, and the jury must agree
unanimously that the defendant is guilty of a specific crime. (People
v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, where one criminal act is charged, but
the evidence suggests the commission of more than one such act, either the
prosecution must elect the specific act relied upon to prove the charge to the
jury, or the court must instruct the jury that it must unanimously agree that
the defendant committed the same specific criminal act. (People
v. Napoles (2002) 104 Cal.App.4th 108, 114.) This is “‘to prevent the jury from href="http://www.mcmillanlaw.com/">amalgamating evidence of multiple
offenses, no one of which has been proved beyond a reasonable doubt, in order
to conclude beyond a reasonable doubt that a defendant must have done something
sufficient to convict on one count.’” (>People v. Russo, at p. 1132, italics
omitted.)

There
is an exception to the unanimity requirement “where the criminal acts are so
closely connected that they form a single transaction or where the offense
itself consists of a continuous course of conduct.” (People
v. Rae (2002) 102 Cal.App.4th 116, 122.)
This exception was applied in People
v. Dieguez (2001) 89 Cal.App.4th 266, 275, where the defendant was charged
with making a series of false statements exaggerating his injuries to the same
doctor during a single appointment. The
court noted that the defendant’s false statements were successive, compounding,
and interrelated to one another, and all aimed at the single objective of
obtaining workers’ compensation benefits.
In addition, the defendant offered exactly the same defense to each of
his false statements. “There was no
reasonable factual basis for the jury to distinguish between [defendant’s]
various statements, and no reasonable legal basis to distinguish between them
in establishing a single offense of making a false statement to obtain workers’
compensation benefits under [Insurance Code] section 1871.4. Thus, no unanimity instruction was
required.” (Id. at p. 276.)

The
same analysis applies in this case.
Count 3 charged appellant with making criminal threats against
Suleyma. Under section 422, subdivision
(a), “[a]ny person who willfully threatens to commit a crime which will result
in death or great bodily injury to another person, with the specific intent
that the statement . . . is to be taken as a threat, even
if there is no intent of actually carrying it out, which, on its face and under
the circumstances in which it is made, is so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or her own safety
or for his or her immediate family’s safety, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment in the state
prison.”

Suleyma
testified that when she said she was going to call the police, appellant said
that if she said anything, he would kill her or go after her mother and
sisters. Asked if appellant made any
threatening statements about using the knife he had picked up, Suleyma
testified: “He just kept saying that we
weren’t gonna get away with it. He kept
saying he was gonna kill us if we did anything.” He also said he would shoot them with his
gun, and Suleyma was aware that he had guns.
Elsa testified that appellant said repeatedly, “I’m going to kill you
and your daughter.” She understood this
to mean he would kill her and Suleyma.
According to Suleyma, the entire incident happened very quickly, in just
a matter of seconds. Asked if it “seems
like a blur really” as far as what happened, she said, “Yes, sir.”

In
closing, the prosecutor recounted evidence that appellant threatened to kill
Elsa with a gun, and he also threatened to stab her. And specifically as to count 3 concerning
Suleyma, the prosecutor argued that Suleyma called 911 because she was worried
about appellant’s threat that he was going to kill them. The threats were all made in a very brief,
continuous period of time, a matter of seconds, during one family fight. They were simply slight variations on the
same threat to Suleyma and to Elsa—“I’m going to kill you”—either by gun, or by
knife, which threats caused Suleyma “reasonably to be in sustained fear” for
her own and her family’s safety. (§ 422,
subd. (a).) There was no basis for
an election, nor for a unanimity instruction as to count 3.

Count
4 charged appellant with dissuading a witness by force or threat, in violation
of section 136.1. Subdivisions (a) and
(b) of that section make it a crime to “knowingly and maliciously” prevent or
dissuade a witness or victim from giving testimony in any inquiry authorized by
law, or from making any report of a crime to a peace officer or from causing
the arrest of a person in connection with the crime. (§ 136.1, subds. (a), (b).) The information specifically charged that the
act “was accompanied by force and an express and implied threat of force and
violence upon SULEYMA [] and a third
person and the property of a victim, witness and third person.”

Suleyma
testified that after appellant hit her mother, she told him she was going to
call the police. He threatened her; she
grabbed her cell phone and dialed 911.
“In the process of clicking dial, he grabbed my phone, he snatched it
off my hands, and he broke it.” Just
before he grabbed the phone from her, “he said that if I would call the cops he
would kill me.” In closing, the
prosecutor argued with respect to count 4, “The victim on that charge is his
daughter Suleyma G., the daughter who called 9-1-1 for help but unfortunately
was not able to do so because he had intercepted by grabbing the phone, threw
it on the floor, broke it, and also said if I’m going to go to jail for
something, I’m gonna go to jail for something big.” The prosecutor emphasized that appellant
threw the phone with so much force that it cracked and would no longer be
usable to call for help. Given the
prosecutor’s election to rely on the breaking of the cell phone as the basis
for this charge, there was no need for a unanimity instruction on count 4.

Count
5 alleged cruelty to a child by inflicting injury on Suleyma, in violation of
section 273a, subdivision (b). That
section provides that a person who “willfully causes or permits any child to
suffer, or inflicts thereon unjustifiable physical pain or mental suffering, . . . is
guilty of a misdemeanor.” Suleyma
testified that when she struggled to get the knife away from appellant, she
received a cut to her right thumb.href="#_ftn2"
name="_ftnref2" title="">[2] She was asked whether during the incident in
the kitchen where she was trying to grab the knife from appellant, “anytime did
he punch, kick you, or injure you in any way.”
Suleyma said yes, “with his fist clenched and closed on my left side of
the top shoulder right here, he socks me.”
The prosecutor argued that the infliction of unjustifiable pain or
suffering on a child was proved because while Suleyma struggled with her
father, “she has a cut from the knife in trying to disarm him, and on top of
that he takes his hand, makes a fist out of it, and then he socks her in the
clavicle.” These two injuries occurred
as part of the same continuous struggle, without any separation in time or
location. This is a single, continuous
transaction, and neither an election nor an unanimity instruction was required.


Notably,
appellant’s defense to all the charges was the same—that the victims were lying
(or giving a “new and improved version” of events), and that there was no
physical evidence presented to support their testimony. “‘The “continuous conduct” rule applies when
the defendant offers essentially the same defense to each of the acts, and
there is no reasonable basis for the jury to distinguish between them.’” (People
v. Dieguez, supra, 89 Cal.App.4th at p. 275.) That is the case as to the challenged
counts. We find no error.

>II

Alternatively,
appellant argues that the sentences on counts 3 and 5 should be stayed rather
than run concurrently if the court concludes the crimes constituted a
continuous course of conduct. Section
654, subdivision (a) prohibits multiple punishment for the same act. The purpose of this section “is to prevent
multiple punishment for a single act or omission, even though that act or
omission violates more than one statute and thus constitutes more than one
crime. Although the distinct crimes may
be charged in separate counts and may result in multiple verdicts of guilt, the
trial court may impose sentence for only one
offense . . . .” (>People v. Liu (1996) 46 Cal.App.4th
1119, 1135.) Multiple punishment is
proper “if the defendant entertained multiple criminal objectives which were
independent of each other.” (>People v. Solis (2001) 90 Cal.App.4th
1002, 1021.) Here we find separate
objectives which preclude application of section 654.

A
criminal threat, as charged in count 3, has as its objective the creation of
sustained fear in the person to whom it is directed for his or her own safety
or the safety of his or her own family.
(§ 422, subd. (a).) The evidence
supporting this count consisted of the verbal threats by appellant that he
would kill Suleyma or go after her mother and sisters, and that he would kill
them if they did anything. Suleyma
testified that she called 911 that day because she was afraid appellant was
going to kill them.

As
to count 4, dissuading a witness, appellant grabbed the cell phone out of
Suleyma’s hand and forcefully threw it to the ground in order to prevent
Suleyma from completing her call to the police.
This is a separate objective from the one he had in count 3.

Count
5, cruelty to a child by inflicting injury, was premised on Suleyma’s struggle
with appellant to get the knife away from him.
In attempting to free himself from her grasp, appellant caused Suleyma
to sustain a cut to her hand during the struggle and he punched her in the
clavicle. These willful acts, which took
place during one struggle, caused her to suffer unjustifiable physical pain,
within the meaning of section 273a, subdivision (b). The objective was entirely separate from the
intent to cause fear in count 3, or the intent to prevent a report to the police. Section 654 did not preclude separate
punishment for each of the three counts.

III

Appellant claims he is entitled to
additional presentence conduct credit pursuant to the October 1, 2011 amendment
to section 4019. We disagree.

Appellant
committed the offenses on April 10, 2011 and was taken into custody on April
11, 2011. The version of section 4019 in
affect at that time provided that prisoners could earn an extra two days of
conduct credit for every four days spent in jail. (Former § 4019.) He was sentenced on November 30, 2011, at which
point he had been in custody for 234 days.
The court calculated his conduct credits in accordance with the former
version of section 4019, dividing his actual credits by four, then multiplying
the result by two. (People v. Gutierrez (1991) 232 Cal.App.3d 1571, 1573.) This calculation resulted in 116 days conduct
credit for appellant.

Appellant
instead seeks the benefit of the amendment to section 4019, which became
effective law on April 4, 2011, operative as of October 1, 2011. (Stats. 2011, ch.15, § 482). Under this amendment, defendants who commit
crimes after October 1, 2011 are entitled to presentence conduct credit at a
full, day-for-day rate, “but these
new credits are expressly available only to defendants who committed their
crimes after October 1, 2011. (§ 4019,
subd. (h).)” (People v. Hul (2013) 213 Cal.App.4th 182, 186.) The changes to section 4019 “shall apply
prospectively . . . for a crime committed on or after
October 1, 2011. Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by
the prior law.” (§ 4019, subd.
(h).) Appellant’s conduct credit was
properly calculated under the prior law.

Appellant
asserts that principles of equal protection require retroactive application of
the amended statute. He concedes that in
People v. Brown (2012) 54 Cal.4th
314, 328-329, the Supreme Court reviewed identical issues with respect to an
earlier amendment, and held that equal protection does not require retroactive
application. We are bound by this
holding under Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455, and thus reject his equal
protection challenge.

>DISPOSITION

The
judgment is affirmed.



>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.





EPSTEIN,
P. J.



We concur:





WILLHITE, J. SUZUKAWA,
J.