Filed 7/7/17 P. v. Alatorre CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JOEL ALATORRE,

Defendant and Appellant.


E066246

(Super.Ct.No. RIF1305853)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Joel Alatorre, of victim intimidation by force or threats. (Pen. Code, § 136.1, subd. (c)(1); count 4.) The jury acquitted defendant on all the remaining charges. The court found true allegations defendant had suffered two prior prison terms (§ 667.5, subd. (b)), had suffered one prior serious felony (§ 667, subd. (a)), and had suffered two prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
The court sentenced defendant to an indeterminate term of 25 years to life on count 4 and a consecutive five-year term on the prior serious felony conviction enhancement. The court struck the prior prison term enhancements. On appeal, defendant contends insufficient evidence supports the verdict. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The People charged defendant by felony information with robbery (count 1; Pen. Code, § 211), carjacking (count 2; Pen. Code, § 215, subd. (a)), vehicle theft (count 3; Veh. Code, § 10851, subd. (a)), witness intimidation by force or threats (count 4; Pen. Code, § 136.1, subd. (c)(1)), and unlawful possession of a firearm by a felon (count 5; Pen. Code, § 29800, subd. (a)(1)). The People additionally alleged defendant had personally used a firearm in his commission of the offenses in counts 1, 2, and 3 (Pen. Code, §§ 12022.53, subd. (b), 1192.7, subd. (c)(8)), had suffered two prior prison terms (Pen. Code, § 667.5, subd. (b)), had suffered one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and had suffered two prior strike convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
The victim testified that on April 5, 2013, two men, one of whom was the defendant, approached his house while he and a friend were sitting on the porch. The victim’s wife and four children were inside the home at the time. Defendant told the victim defendant was there for the victim’s truck and wanted the keys.
The victim asked defendant why he wanted the truck. Defendant made a call on his cell phone. The victim asked defendant to hand him the phone so that he could speak with whomever defendant was talking to because he “wanted to know who it was because of what [defendant] was doing.” Defendant refused the request.
The victim gave defendant the keys to his truck because defendant said that if he did not, the victim “was going to have problems with [his] family that was there.” Defendant had his hands in his pockets, but the victim did not see anything in defendant’s hands. After the victim gave defendant his keys, defendant asked the victim to sign a paper authorizing defendant’s taking of the vehicle. The victim knocked on his front door and asked his wife to get him a pen, which she quickly acquired for him.
Defendant then asked the victim if he had any “gold or anything.” The victim responded that inside the house he did; defendant told the victim he could not go inside the house.
Defendant and the victim walked to the victim’s truck where he retrieved the vehicle registration. The victim wrote on the registration that he had loaned the vehicle; the victim then signed the registration. He gave the registration slip to defendant because defendant said otherwise he “was going to have problems.” Defendant told the victim to get inside the truck with him.
While inside the truck, defendant told the victim that if he called the police he “was going to have problems.” Defendant removed a gun from his pocket and placed it between the front seats. The victim thought defendant was going to shoot him.
Defendant told the victim to give him all the victim’s money. The victim said the money he had was for his rent; defendant told him to give it to him anyway. The victim gave defendant $500 or $600. Defendant told the victim to exit the vehicle; defendant then drove off in the victim’s truck.
The victim went inside his house where he told his wife his truck had been taken. The victim’s wife called the police approximately an hour and a half thereafter. They did not call the police sooner because they were afraid. Defendant “said he was going to return and he was going to create problems or create mayhem if he returned for [the victim’s] family.” The victim was afraid defendant would return and “hit” him or members of his family. Defendant said “he would return and kill [the victim’s] family.”
The victim’s wife testified that two people arrived at their home while the victim was with his friend. After a while, the victim approached the door and asked her for a pen. When she came out thereafter, the truck was gone. They waited for their other two children to come home and then went to the police station where they were told they had to call first. She then called the police.
The victim’s friend testified that on April 5, 2013, he went to the victim’s home. Two men arrived while he and the victim were visiting on the porch; defendant was one of the men. Defendant asked for the victim by name. The victim responded that he was the one for whom the defendant asked. Defendant said that he needed to speak with the victim. The victim said he had nothing to talk about with defendant.
Defendant started talking with someone on his cell phone. The victim asked to speak with the person on the phone in order to determine what was going on. Defendant would not give the phone to the victim. The victim started to get up from his chair; defendant told him not to get up because defendant did not “want to disrespect his house.” The victim’s friend interpreted the statement to mean, “‘I don’t want to hurt you.’” Defendant had his hand in his pocket and moved it a little after making the threat so that he could see a gun.
Defendant said he had been sent to collect something. He asked the victim for jewelry; the victim said he would have to go inside the house; defendant would not allow him to go inside. Defendant told the victim he needed the victim to sign a paper. The victim did not have a pen, so he knocked on the door so he could obtain one from someone inside. The victim’s wife obtained a pen for him. The victim thereafter signed the registration. The victim and defendant then went inside the truck.
On April 8, 2013, a deputy sheriff of San Diego County ran the license plate of the victim’s truck, which was parked in front of defendant’s home; the inquiry reflected the vehicle had been reported stolen. The keys to the truck were located on the coffee table of defendant’s living room. Defendant was present inside the home and matched the description of the alleged perpetrator. An officer created a six-pack photographic lineup with defendant’s picture; the victim identified defendant from the lineup.
II. DISCUSSION
Defendant contends insufficient evidence supports his conviction for victim intimidation by force or threats. Specifically, defendant argues that because an element of the offense requires that the victim actually be “a victim of a crime,” and because the jury acquitted defendant of all the other crimes with which he was charged, insufficient evidence was adduced that the victim was, in fact, “a victim.” We disagree.
After the verdicts, defendant personally wrote a letter addressed to the judge in which he contended: “I have been convicted for dissuading a witness yet there is no crime behind it.” The court repeatedly acknowledged the issue defendant had raised, but noted that, based on its own legal research on the issue, it did not believe a motion for new trial would lie. Nevertheless, the court granted a number of continuances in order for defendant to obtain new counsel who could, if appropriate, file a motion for new trial on that basis. Defendant’s subsequently appointed counsel never filed a motion for new trial nor raised the issue orally.
“‘[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” [Citation.] A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict. [Citation.]’ [Citation.]” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
To prove a violation of section 136.1 the People must show “‘(1) the defendant has attempted to prevent or dissuade a person (2) who is a victim or witness to a crime (3) from making [a] report . . . to any peace officer or other designated officials.’ [Citation.] The prosecution must also establish that ‘the defendant’s acts or statements [were] intended to affect or influence a potential witness’s or victim’s testimony or acts.’ [Citation.]” (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347.) “‘Victim’ means any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other state or of the United States is being or has been perpetrated or attempted to be perpetrated.” (§ 136, cl. (3).)
Here, the People adduced sufficient evidence that the victim was “a victim” against whom there was reason to believe a crime had occurred. The victim testified he gave the keys to his truck and signed over the registration to defendant because defendant threatened that otherwise defendant would cause problems for his family. The victim said he believed defendant was going to shoot him. Thus, the victim handed over $500 or $600 to defendant. Defendant told the victim not to call the police or he “was going to have problems.” Defendant told the victim that if he did not comply “he was going to return and . . . create mayhem . . . for [the victim’s] family.” Defendant said otherwise “he would return and kill [the victim’s] family.”
The victim’s friend testified that defendant threatened the victim. Defendant exercised control over the victim’s movements, prohibiting him from getting up, going into his own home, and compelling him to move from the porch into his truck. Even if defendant did not commit any of the other crimes with which he was charged or any others with which he could have been charged, there was reason to believe a crime had occurred. Thus, sufficient evidence supported defendant’s conviction for intimidating a victim.
Defendant contends that since he was acquitted of all the other charges with which the People charged him, insufficient evidence supported the guilty verdict for intimidation of a witness. However, “a jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true. [Citations.]” (In re Coley (2012) 55 Cal.4th 524, 554.) Indeed, “[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] The United States Supreme Court has explained: ‘[A] criminal defendant . . . is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count was insufficient.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 656.) “An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict. [Citations.]” (Ibid.) Thus, the jury’s verdicts on the other counts does not mean there was no reason to believe a crime had occurred. Rather, it meant only that, in that particular jury’s mind, there was insufficient evidence beyond a reasonable doubt in which to convict defendant of only those specific charges.
Logically, the intent in passing section 136.1 was to encourage people who believe they may have been victims of or witnesses to a crime to report such conduct. Whether or not any crime has actually been committed is irrelevant to this intent, so long as “there is reason to believe that any crime” “has been perpetrated.” (§ 136, cl. (3).) This is particularly important as potential victims and witnesses are typically laypersons in the law and cannot be expected to know what constitutes a crime and whether a successful prosecution of any crime could be obtained.
Section 136.1 accomplishes its intent by punishing behavior by perpetrators which would dissuade such “victims” or “witnesses” from reporting such behavior. (See People v. Galvez (2011) 195 Cal.App.4th 1253, 1259 [legislative intent of § 136.1 to cover prevention or dissuasion of any witness, victim or not, from reporting a crime].) Indeed, section 136.1 applies to attempts to dissuade people from reporting, causing a complaint or information to be filed, and/or in assisting with any prosecution. It does not require that the crime actually be prosecuted at all, and, if so, whether successfully. (See People v. Velazquez (2011) 201 Cal.App.4th 219, 232; see People v. Navarro, supra, 212 Cal.App.4th at pp. 1349-1352; see People v. Torres (2011) 198 Cal.App.4th 1131, 1134 [defendant’s conviction of dissuading a witness upheld where the jury hung on the remaining counts].) Thus, so long as there is sufficient evidence that there is reason to believe a crime had been perpetrated, the “victim” element of the offense has been met. Here, as discussed above, there was ample evidence for both the jury and the victim to have reason to believe a crime had occurred. Therefore, sufficient evidence supports defendant’s conviction.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

MILLER
J.