P. v. Torres

Filed 10/9/07 P. v. Torres CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Carlos Torres was convicted after jury trial of inflicting corporal injury on a cohabitant with a specified prior (Pen. Code, 273.5, subd. (e)(1)),[1]possession of a controlled substance for sale (Health & Saf. Code, 11351), cultivation of marijuana (Health & Saf. Code, 11358), and two counts of attempting to dissuade a victim or witness ( 136.1, subd. (b)(1)). The trial court found true an allegation that defendant had a prior conviction for sale of a controlled substance (Health & Saf. Code, 11370, subd. (a), 11370.2), and sentenced him to 12 years in state prison.

On appeal defendant contends that there is insufficient evidence to support his conviction on one of the attempting to dissuade a witness counts, and that the trial court prejudicially erred in admitting evidence of his prior conviction for sale of a controlled substance to prove his intent to sell in the present case. We disagree with defendants contentions and, therefore, will affirm the judgment.

BACKGROUND

Defendant was charged by information with inflicting corporal injury on a cohabitant with a specified prior ( 273.5, subd. (e)(1); count 1); possession of a controlled substance, cocaine, for sale (Health & Saf. Code, 11351; count 3); cultivation of marijuana (Health & Saf. Code, 11358; count 5); and two counts of attempting to dissuade a victim or witness ( 136.1, subd. (b)(1); counts 2 & 4). The information further alleged that defendant had a prior conviction for sale of a controlled substance within the meaning of Health and Safety Code sections 11370, subdivisions (a) and (c), and 11370.2.

Trial Evidence

Defendant was Maria Teresa Perez Ochoas boyfriend. She and her four children moved with defendant into a house on Virginia Street in San Jose on May 14, 2005. During the time they lived together defendant hit Ochoa almost every day, but she did not tell the police about it because she was afraid.

Defendant grew marijuana in the backyard and kept drugs in the closet of the bedroom he shared with Ochoa. Ochoa and her children saw defendant sell the marijuana and drugs to people who came to the house. Sometimes defendant would give Ochoa the drugs to give to the people when they came. Defendant also asked Ochoa and her 14-year-old daughter to help him put the drugs in baggies. Ochoa did not want to do it, but defendant said that they had to help him or he would beat her. He told Ochoas daughter that the drugs were to support them. Ochoa and her daughter packaged the drugs two or three times, and defendant would not let them leave the bedroom until they finished doing so.

On the evening of August 31, 2005, defendant, Ochoa, and her children were in the living room watching television when defendant and Ochoa started arguing about defendant speaking to another woman on the telephone. Defendant hit Ochoa in the face three times with the phone and also on her head, neck and back with his fist. She fell on her back to the living room floor. He got on top of her, grabbed her by her neck, choked her, and said that he was going to kill her. He had a knife in his hands and said that it was to cut her throat. He said that if she called the police, something would happen to her children. Ochoas 12-year-old son heard defendant say to Ochoa that he was going to kill my grandmother if we called the police on him. Ochoas 14-year-old daughter heard defendant say to Ochoa that if they called the police on him, that she was going to pay for that.

Ochoa scratched defendant and her son hit him on the back with a broom handle. Her daughter ran to get a tape recorder and tried to tape the argument. A neighbor boy and his mother came and tried to get defendant to stop. Defendant let Ochoa go when she kneed him in the groin. She ran to the back yard and her children and the neighbors ran out to the street. Defendant ran after Ochoa and pulled her by her hair and her earrings. They struggled. The police arrived after a few minutes and arrested defendant.

San Jose Police Sergeant John Carr and Officer Edward Dorsey separately reported to the Virginia Street residence around 10:30 p.m. on August 31, 2005, in response to a 911 call by an unknown person. A distraught boy flagged them down, and told them that his mother was being beaten. The officers heard voices coming from the back yard and walked toward it. Defendant was in the back yard with his arm around Ochoa. Ochoa pushed away from defendant and ran toward the officers. She was crying hysterically and pointing to the injuries on her face. She had a bump next to her right eye, a cut ear lobe, redness on her neck, and bruising on her back. Carr arrested defendant, who appeared to be under the influence of alcohol.

Sergeant Carr spoke with Ochoa, and found a knife she had described in the kitchen sink. Ochoas son gave Officer Dorsey the tape from the tape recorder, and told him that he had recorded what was happening. The boy also showed Dorsey the marijuana plant in the back yard and told him where defendant kept drugs in the house. Dorsey found a small tin can on the floor in the corner of defendant and Ochoas bedroom closet. Inside the can were 38 individually wrapped plastic bindles of drugs, with a total weight of 11.6 grams. In Dorseys opinion, based on his training and experience, the bagged drugs were possessed for sale and not for personal use. The parties stipulated that four of the 38 bindles were tested at the county crime lab, that three of the bindles contained cocaine, and that one of the bindles contained methamphetamine. The parties further stipulated that leaves taken from the back yard marijuana plant weighed more than 28.5 grams.

A blood sample taken from defendant around 12:30 a.m. had a blood alcohol content of .22. It also tested positive for cocaine metabolite but not for cocaine. Ochoa sought medical treatment for her injuries on September 8, 2005. Officer Dorsey listened to the tape that Ochoas son gave him. He testified that he heard what sounded like people fighting and arguing, but he could not understand what they were saying. The parties stipulated that the tape contained only a girls voice apparently practicing spelling.

The prosecutor presented evidence that defendant has used the name Juan Carlos Torres, and that he has suffered two prior convictions for domestic violence ( 242, 243, subd. (e), 273.5, subd. (a)) and one prior conviction for sale or transportation of a controlled substance, cocaine (Health & Saf. Code, 11352, subd. (a)).

Verdicts, Finding on the Prior, and Sentencing

On May 1, 2006, the jury found defendant guilty of all counts as charged in the information. Defendant waived his right to a jury trial on the prior allegation, and the court found the allegation to be true. On June 9, 2006, the court[2] sentenced defendant to 12 years in state prison.

DISCUSSION

Sufficiency of the Evidence

Defendant was charged in count 2 with attempting to dissuade Ochoa from making a police report. ( 136.1, subd. (b)(1).) He was charged in count 4 with attempting to dissuade Ochoas 12-year-old son from making a police report. As to count 4, the prosecutor argued to the jury: Count four is attempting to prevent a victim or witness from reporting a crime. In this case, its [Ochoas son]. He said that he was there in the room when the defendant said to all of them, his brothers and his sisters, dont tell the police or Im going to kill your grandmother, again attempting to prevent a victim or witness from telling what he saw from the police. Even though the defendant didnt single out each kid who was in the room that day and for [the boy], who is the charged victim for count four, the witness, he knew facts relating to the crime. He knew about his mom was being beaten up that night and he did a lot to try to stop it. He knew those facts and was told with everyone else, dont tell the police or Im going to kill your grandmother. Thats an attempt to prevent him from reporting a crime, to be talking to the police. The jury found defendant guilty of both counts 2 and 4.

On appeal, defendant contends that there is insufficient evidence to support his conviction on count 4. He argues that no evidence was admitted to show that he specifically intended to dissuade Ochoas son from reporting the assault on Ochoa to the police. He argues that there was absolutely no evidence presented that [defendant] ever directed any threats at the boy, and thus he was denied his constitutional right to due process. The Attorney General contends that, while it is true that Ochoas son testified that defendant did not make the threatening statement directly to him, the jury could reasonably infer from the facts presented that defendant had the specific intent to dissuade the boy when he made the statement.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible to two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citations.] [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

Section 136.1, subdivision (b)(1), prohibits any person from attempting to prevent or dissuade a victim or a witness of a crime from making a report of that victimization to a law enforcement officer. The crime of threatening a victim or witness as proscribed by section 136.1, subdivision (b)(1) is a specific intent crime. (See Judicial Council of Cal. Crim. Jury Instns. (2006), CALCRIM No. 2622; People v. Brenner (1992) 5 Cal.App.4th 335, 339.) The court properly instructed the jury that, to prove defendant guilty of this crime, the prosecutor had to prove that defendant maliciously tried to prevent or discourage Ochoas son from making a report that someone else was a victim of a crime to a police officer; that the boy was a witness; and that defendant knew he was trying to prevent the boy from reporting a crime from a police officer and intended to do so. The court also properly instructed the jury that an intent or mental state may be proved by circumstantial evidence. (CALCRIM No. 225.) Intent is seldom established with direct evidence but is often proved by circumstantial evidence. It is usually inferred from all the facts and circumstances surrounding the crime. (See People v. Lewis (2001) 25 Cal.4th 610, 643; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)

Contrary to defendants argument, the evidence of defendants intent as it relates to count 4, though circumstantial, was strong. Ochoas children were in the living room when defendant and Ochoa started arguing. Ochoas 12-year-old son testified that he was in the living room and saw defendant hitting Ochoa with the telephone and his fists. He also saw defendant on top of Ochoa, threatening her with a knife. In addition, the boy testified that he heard defendant tell Ochoa that he would kill her childrens grandmother if we called the police, and that he was afraid of defendant at that time. The jury could reasonably infer from this evidence that, although defendant was speaking to Ochoa at the time he made this threat, he did so with the specific intent to dissuade both Ochoa and her children, including Ochoas 12-year-old son, who was nearby and was attempting to stop defendants assault, from calling the police. That the evidence could also support a contrary conclusion does not warrant reversal of the conviction. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)

Evidence of the Prior

In defendants motions in limine, he requested that evidence of his 2000 conviction for sale of cocaine be excluded under Evidence Code sections 1101 and 352. The prosecutor told the court that he was seeking to admit the fact of the conviction as Evidence Code section 1101, subdivision (b) evidence for intent and absence of mistake. Defendant argued that the facts of the prior were not sufficiently similar to the facts of the present case to allow the evidence to be admitted on those issues. After reviewing the police report of the prior, the court stated that the prior drug conviction would be admitted under Evidence Code section 1101, subdivision (b), for intent and absence of mistake.

Exhibit No. 17 contains a felony complaint filed February 7, 2000, in the Los Angeles Superior Court, charging Juan Carlos Torres with a violation of Health and Safety Code section 11352, subdivision (a) [transportation or sale of a controlled substance, here cocaine]. The jury was informed that the parties stipulated that certified court records show that the person identified in exhibit No. 17 pleaded guilty or no contest to the charges alleged . . . and was therefore convicted. The court instructed the jury that, with respect to the possession of a controlled substance for sale count, evidence was presented that defendant committed an uncharged offense and that, if it determined that the prosecution proved by a preponderance of the evidence that defendant did in fact commit the uncharged offense, it could, but was not required to, consider the evidence for the limited purpose of deciding whether or not defendant acted with the required intent or whether defendants actions were the result of mistake or accident. (See CALCRIM No. 375.) The jury found defendant guilty of possession for sale of a controlled substance as alleged in count 3.

On appeal defendant contends that the court erred in admitting evidence of his prior conviction to prove that he had the intent to sell the drugs found in this case. He argues that, because the evidence provided no facts underlying the prior conviction, the jury was not provided sufficient information for it to evaluate whether the two crimes were sufficiently similar to show that he harbored the same intent in both cases.

Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant when offered to prove his or her conduct on a specified occasion. Subdivision (b) of the statute, however, provides that such evidence is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . . ). To be admissible to show intent, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. [Citations.] Moreover, to be admissible, such evidence must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1194.) We review for abuse of discretion a trial courts ruling on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. [Citations.] (Id. at p. 1195.)

Assuming, without deciding, that the court abused its discretion in admitting the evidence the prosecutor presented regarding defendants prior conviction for sale of a controlled substance, the error would not require reversal. Even without the evidence of defendants prior conviction, there was substantial testimony that defendant possessed for sale the drugs found in the closet of the bedroom he shared with Ochoa. Ochoa, her 12-year-old son, and her 14-year-old daughter testified that it was defendant who kept the drugs in the house, and that they saw him furnishing the drugs to people who came to the house. Ochoa and her daughter also testified that defendant forced them to package the drugs in separate bindles. Officer Dorsey testified that, based on his training and experience, the drugs found in the 38 bindles in the bedroom closet were possessed for sale and not for personal use. Accordingly, it is not reasonably probable that a result more favorable to defendant would have resulted had the evidence of the prior offense not been admitted. (People v. Cole, supra, 33 Cal.4th at p. 1195; Chapman v. California (1967) 386 U.S. 18, 24.)

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] Further statutory references are to the Penal Code unless otherwise specified.

[2] The judge who sentenced defendant was not the same judge who presided over defendants trial.