Filed 4/27/22 P. v. Billings CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Harry Joseph Colombo and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a jury trial, defendant Brian Billings was found guilty of one count of taking a motor vehicle with the intent to permanently or temporarily deprive the owner of title to and possession of the vehicle (Veh. Code, § 10851, subd. (a)), and three counts of dissuading a witness from prosecuting a crime (Pen. Code,[1] § 136.1, subd. (b)(2)). In this appeal, defendant only challenges the sufficiency of the evidence supporting the convictions for dissuading a witness from prosecuting a crime. Recently, defendant filed a supplemental brief arguing the sentence he received must now be vacated due to legislative changes made by Senate Bill No. 567 (Reg. Sess. 2020–2021) (Senate Bill 567). While we find substantial evidence exists to support the convictions, we vacate the sentence imposed and remand this case so that defendant may be resentenced. In all other respects, the judgement is affirmed.

FACTUAL AND PROCEDURAL SUMMARY

Sometime before March 2019,[2] Doreen Bird purchased a car. While showing the car to defendant on March 23, defendant told Bird the driver’s side headlight was not working. The car was parked in front of her house, so Bird informed defendant she needed to check on her daughter before they could leave for the auto parts store. The keys for the car were already in the ignition before Bird went into the house.

When Bird returned 15 to 20 minutes later, the car and defendant were gone. Bird tried calling and texting defendant to no avail. Bird testified she reported the car stolen around 8:00 p.m., a process that was delayed because she had difficulty finding the car’s VIN number. Bird finally heard from defendant that evening. During this conversation, Bird informed defendant she had reported the car stolen and that she had given the police his name. Defendant then informed Bird he was out of gas. Because she wanted the car back, Bird “wired” $15.00 to Jason Wickenak, who was with defendant, so they could get gas.

Fresno County Sheriff’s Deputy Christopher Lincoln testified that at approximately 9:45 p.m., he encountered the car, which failed to dim its high beam lights to oncoming traffic. Lincoln attempted to initiate an enforcement stop. As he followed the car, Lincoln noted the car reached speeds of approximately 85 miles per hour while driving through a commercial/residential neighborhood, then eventually a nearby freeway. Lincoln continued to follow the car as it reached 100 miles per hour just before it exited the freeway. At some point, another sheriff’s deputy joined the chase and “rammed” the car, causing it to stop near the edge of a canal. The driver[3] and defendant, who suffered an injured leg, were then placed under arrest.

This appeal focuses on what happened after the arrest. While defendant was awaiting trial in jail, he engaged in several phone calls with Bird that were recorded. Three of those phone calls resulted in three separate charges that defendant tried to prevent or “dissuade” Bird from responding to a subpoena.

A recorded phone call from April 2 between defendant and Bird supplies the facts supporting count 3. At this time, defendant learned Bird received a subpoena to testify in a proceeding involving Wickenak. At first, defendant questioned what proceeding the subpoena was meant for and whether his name appeared on the subpoena.[4] Later during the same conversation, Bird returned to the topic of the subpoena and asked “[w]ho’s Jason Whitcanack [sic]?” Defendant responded that he did not know, but then told Bird she was “not a witness for either one of us,” and should not feel obligated to show up to court. Defendant also told Bird that she should not take threats from the district attorney that they might take her child away seriously, saying, “t’s just the DA with some bull[****].”

Section 136.1, subdivision (b)(2) provides it is unlawful to attempt to “dissuade” a person who is the victim of a crime from “[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.” Subdivision (b) does not require there be proof the defendant acted knowingly and maliciously. ([i]People v. McElroy (2005) 126 Cal.App.4th 874, 881.) The prosecution is also not required to show the defendant was successful in these efforts. Proof of the attempt is enough to satisfy the requirements of section 136.1 under subdivision (b). (People v. Pettie (2017) 16 Cal.App.5th 23, 54–55 (Pettie).)

A. The Plain Meaning of Section 136.1, Subdivision (b)(2)

Again, defendant believes the evidence presented at trial actually supports another subdivision of section 136.1. When considering the construction of a statute used to charge and prove a crime at trial, this court engages in a de novo review of the language. (People v. Brewer (2011) 192 Cal.App.4th 457, 461.) The de novo review begins with the plainly understood, “commonsense meaning” of the statute’s language because this is often the most reliable indicator of what the Legislature intended to prohibit. (People v. Brackins (2019) 37 Cal.App.5th 56, 65–66.)

Section 136.1, subdivision (b)(2) prohibits acts intended to prevent a victim of a crime or witness from, “[c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.” Logically, the language refers to the early stages of charging and prosecuting a crime. The language referencing “assisting in the prosecution,” is part of the same sentence and, therefore, also applies to those early stages. This could include testimony provided during an early part of the process, such as during a preliminary hearing. (See Pettie, supra, 16 Cal.App.5th 23, 54–55; People v. Velazquez (2011) 201 Cal.App.4th 219, 229–230.)

While defendant agrees that section 136.1, subdivision (b)(2) concerns the charging and prosecution of an offense, he argues that the second half of the sentence referencing “assisting” the prosecution must be viewed in a very limited context that does not include testimony. Defendant reaches this conclusion by citing subdivision (a)(2) of section 136.1, which he believes is the specific provision that addresses efforts to prevent a witness from testifying in court. Defendant reads these provisions too narrowly and ignores another more important distinguishing factor.

Specifically, the main distinction between subdivisions (a)(2) and (b)(2) of section 136.1 has to do with the requirement that the effort to dissuade the witness is knowing and malicious. That element is not required under subdivision (b)(2), which was charged here. (See People v. Cook (2021) 59 Cal.App.5th 586, 590; People v. Brackins, supra, 37 Cal.App.5th 56, 68.) In addition, there is nothing in the language of subdivision (b)(2) that excludes testimony from the type of aid a victim or witness might provide to the prosecution when initially charging or prosecuting a defendant, such as testimony that might be needed during a preliminary hearing.

Defendant relies on the case of People v. Brown (2016) 6 Cal.App.5th 1074, for the proposition that section 136.1, subdivision (b)(2) only applies to actions that seek to prevent the charging and the prosecution of an offense. (Id. at p. 1082.) However, the Brown court did not conclude section 136.1, subdivision (b)(2) excludes testimony from the types of assistance a victim might provide to prosecutors when they are considering charging a crime.[7] (See discussion id. at p. 1083.) We reject any interpretation of section 136.1, subdivision (b)(2) that excludes testimony from the type of activity that would be of assistance to the prosecution in pursuing or charging a crime.

B. The Applicable Standard of Review

When considering whether a conviction is supported by the evidence, this court must review the entire record to determine whether any rational trier of fact could find support for the essential elements of the crime beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The evidence must be “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) Therefore, this court must review the evidence in a manner that is favorable to the prosecution. (People v. Wahidi (2013) 222 Cal.App.4th 802, 806–807, citing People v. Zamudio.) We look for substantial evidence; we do not consider conflicts in the evidence or weigh the strength of that evidence. (Ibid.) A reversal based on insufficient evidence is not warranted unless there is no basis for concluding sufficient substantial evidence supports the jury’s verdict. (Ibid.)

C. Application of the Law

The three phone calls between defendant and Bird and the statements made during those phone calls all occurred soon after he was arrested and before he appeared for a preliminary hearing.[8] Defendant was arrested in March. The subpoenas referenced in the phone calls were likely issued in March and/or April when time was of the essence before various speedy trial rights could be triggered. (See § 859b.) This was very early in the process, when the prosecution would be deciding how to charge the crimes committed by defendant. The potential need for Bird’s testimony at a preliminary hearing for either defendant or the driver of the car was still on the table and might have been considered necessary to meet the probable cause requirement.

Substantial evidence supports each of the counts alleging violations of section 136.1, subdivision (b)(2). In each phone call, defendant addressed the fact Bird had received a subpoena, and either specifically encouraged her not to appear, or reminded her that without a victim testifying, he or his codefendant could avoid being convicted. The crime was completed each time defendant took a step toward trying to convince Bird not to participate or testify as required by a subpoena. (See People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519.) While the first phone call on April 2 involved more facts in the conversation defendant and Bird had about the subpoena, the later calls were not lacking in substantial evidence to support the additional counts. Defendant employed similar language when discouraging Bird from participating with the prosecution in those two later phone calls. The meaning of that language was clear enough to a casual reader of the transcript, let alone to Bird. Each attempt by defendant to dissuade Bird from cooperating with the prosecution was a separate crime. (Pettie, supra, 16 Cal.App.5th at pp. 54–55.)

II. The Impact of Senate Bill 567 on the Need to Reconsider Defendant’s Sentence

At the time defendant was sentenced, section 1170 provided the choice between the lower, middle, and upper term “shall rest within the sound discretion of the court,” who determines which term “best serves the interests of justice.” (Former § 1170). On January 1, 2022, amendments to section 1170 made by Senate Bill 567 went into effect. Defendant now believes his sentence may be invalid following these amendments.

Of most relevance here is the fact that the changes made to section 1170 through Senate Bill 567 make the middle term the presumptive term. A trial court may now only impose an upper term when the facts underlying the aggravating circumstances have been stipulated to by the defendant, or found true beyond a reasonable doubt by the jury or the court acting as the factfinder. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) However, an exception is available allowing a trial judge to rely on certified records of a defendant’s prior convictions without submitting the issue of the prior conviction to a jury. (§ 1170, subd. (b)(3).)

When sentencing defendant in this case, the trial court imposed the upper term for count 1, a violation of Vehicle Code section 10851. The People contend we are not required to send this matter back for resentencing because the choice of the upper term was based on defendant’s prior criminal history, which they contend is an exception to section 1170, subdivision (b)(3). The People cite People v. Towne (2008) 44 Cal.4th 63, and People v. Black (2007) 41 Cal.4th 799, for the proposition that criminal histories and violations of probation qualify for the exception laid out in section 1170, subdivision (b).

However, this argument does not fully address the legislative changes made to section 1170 by Senate Bill 567. The plain language of section 1170, subdivision (b)(3) now provides in relevant part:

“Notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (Emphasis added.)

There is no mention of performance on probation or parole in this statutory language.

When imposing the upper term for count 1, the trial court selected the upper term because of several factors, including defendant’s conduct while on parole:

“The Court’s going to order the imposition of the upper term of [c]ount [o]ne using it as the base term as it affords the longest term available under [section] 654. That would be eight years. The Court notes that circumstances in aggravation are that he was on parole when the offense was alleged to have occurred. [Defendant] has served prior prison terms, likewise. His prior performance on parole or supervision was unsatisfactory. And, frankly, he took advantage of a position of trust of Ms. Bird in taking her car. She was his friend and she left it there with him and came back out and her car was gone.”

The court considered these factors cumulatively. The court did not state it was exclusively relying on or verifying the fact of prior convictions by consulting a “certified record of conviction.” (§ 1170, subd. (b)(3).) While the trial court references prior prison terms as one of the reasons it chose the aggravated term, the court failed to identify which prior prison terms it was referencing.

The People argue the five prior convictions defendant admitted to before the jury was empaneled amply support the choice of the aggravated term. However, four of the prior convictions were alleged as part of count 1. These prior convictions allowed the People to pursue an increased base term for the Vehicle Code section 10851 violation by a recidivist, to a range of two, three, or four years, instead of the usual term of up to one year, once the jury found defendant guilty of count 1. (§§ 666.5, 10851; People v. Demara (1995) 41 Cal.App.4th 448, 453.) Under these circumstances, the prior convictions of section 10851 are elements of the crime and may not also be used to impose the upper term. (Cal. Rules of Court, rule 4.420(d); see also People v. Scott (1995) 9 Cal. 4th 331, 350.) Therefore, the presumption favoring the middle term under section 1170, subdivision (b) governs here.

The final prior conviction defendant admitted to, qualified as a “strike” conviction that allowed the trial court to double the base term imposed for count 1. However, “[t]o comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing a particular term only if the court has discretion to strike the punishment for the enhancement and does so.” (Cal. Rules of Court, rule 4.420(c).) As a result, this prior conviction was not available to the trial court to both justify the selection of the aggravated term and double the base term. (See People v. Calhoun (1981) 125 Cal.App.3d 731, 733–734.)

The clear language of section 1170 requires prior convictions be proved through a certified record or stipulation. All other factors a sentencing court might rely upon to support an upper term must now be found true beyond a reasonable doubt by the jury or by the judge in a court trial.

We cannot assume the jury would have made the necessary finding beyond a reasonable doubt if they had been presented with this information, in order to declare this “error” harmless. Defendant is entitled to a reconsideration of his sentence because his appeal was not yet final when the changes to section 1170 went into effect. (In re Estrada (1965) 63 Cal.2d 740.) Thus, we vacate the sentence imposed and remand for resentencing.

DISPOSITION

Defendant’s sentence is vacated and this case is remanded for resentencing. The trial court must reconsider whether it can impose the upper term for the conviction on count 1, following legislative changes made by Senate Bill 567 to section 1170. Following resentencing, the trial court shall forward an amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.

* Before Hill, P. J., Detjen, J. and DeSantos, J.

[1] Unless otherwise specified, all further statutory references will be to the Penal Code.

[2] Unless otherwise specified, all dates mentioned in this opinion occurred during 2019.

[3] The record refers to the identity of the driver in two different ways. Bird testified the driver was Jason Wickenak. Lincoln identified the driver as Joshua Silver. A deeper reading of the record suggests defendant and Bird were trying to protect the identity of the driver, who may have been a fugitive at the time of the accident that led to their arrest.

[4] The recorded phone call contains a further discussion about the identity of the codefendant.

[5] A review of the transcripts for all three phone calls reveals that defendant’s comments suggesting Bird should avoid testifying or responding to the subpoenas become more nuanced each time he returned to the topic.

[6] Defendant was also sentenced to serve the middle term of four years in state prison for counts 4 and 5; however, these terms were stayed pursuant to section 654.

[7] The defendant in Brown was not even charged with violating section 136.1, subdivision (b)(2). Any discussion in Brown about the interpretation of this specific subdivision constitutes dicta at most.

[8] In fact, the preliminary hearing considering the charges brought against defendant did not occur until August 6, and the information brought against defendant was not filed until August 12.