Opinion
F073400
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES SCOTT EVANS, Defendant and Appellant.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF159794A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, for Plaintiff and Respondent.
-ooOoo-
Charles Scott Evans was convicted, after jury trial, of three felony counts of attempting to dissuade a witness from testifying at trial and three misdemeanor counts of violating a protective order. He challenges his convictions for attempting to dissuade a witness on multiple grounds; he also challenges his sentences for these convictions. Similarly, Evans challenges his misdemeanor convictions for violating a protective order as well as the sentences for these convictions. Finally, Evans raises a claim of cumulative error. We will reverse one of Evans's convictions for attempting to dissuade a witness, for insufficiency of the underlying evidence. We reject his other contentions. We will remand the matter for resentencing consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
This case arose out of a domestic dispute on November 22, 2014, between Evans and his wife, Rebecca S., a probation officer. The altercation occurred at the home of Evans and Rebecca. A neighbor called the police and Evans fled to his uncle's house, where he was arrested and later booked into jail.
Evans was charged by an amended information filed in the Kern County Superior Court with inflicting corporal injury on a spouse (count 1; Pen. Code, § 273.5, subd. (a)); making criminal threats (count 2; § 422); three counts of attempting to dissuade a witness (counts 3, 4, 5; § 136.1, subd. (a)(2)); misdemeanor resisting a peace officer (count 6; § 148, subd. (a)(1)); and three misdemeanor counts of violating a protective order (counts 7, 8, 9; § 166, subd. (c)(1)). Various enhancements were alleged in connection with the charges.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Evans pleaded no contest to the charge of misdemeanor resisting an officer. A jury hung as to the charges of inflicting corporal injury on a spouse and making criminal threats; the court declared a mistrial as to these charges and subsequently granted the prosecution's motion to dismiss them. The jury convicted Evans of three counts of attempting to dissuade a witness and three misdemeanor counts of violating a protective order. In a bifurcated proceeding, the court found that Evans had suffered a prior strike and serious felony conviction and served three prior prison terms.
The court sentenced Evans to an aggregate prison term of 15 years eight months, based on his three convictions for attempting to dissuade a witness along with recidivist enhancements. For the conviction for attempting to dissuade a witness in count 3, the court sentenced Evans to the upper term of three years, doubled it on account of the prior strike conviction, and added five years for the prior serious felony conviction and two years for the prison priors, for a total of 13 years. The court sentenced Evans to consecutive terms of eight months (one third the midterm) for each of the two remaining convictions for attempting to dissuade a witness (counts 4 and 5) and doubled the terms on account of the prior strike, for a total of two years eight months. The court imposed concurrent one-year jail terms for each of the three misdemeanor convictions for violating a protective order (counts 7, 8, 9). In addition, the court imposed a one-year jail term for the misdemeanor conviction for resisting an officer (count 6), with credit for time served.
Most of the evidence presented at trial related to the charges of inflicting corporal injury on a spouse and making criminal threats. However, as noted above, the jury hung on these charges and they subsequently were dismissed on motion of the prosecution. This appeal therefore relates only to Evans's felony convictions for attempting to dissuade a witness and his misdemeanor convictions for violating a protective order, along with his sentences for these convictions and associated recidivist enhancements. Accordingly, instead of summarizing upfront all the evidence presented at trial, we will delineate the facts pertinent to each issue in the discussion related to that issue.
DISCUSSION
I. Evans's Convictions and Sentences on Three Counts of Attempted Dissuasion of a Witness (Counts 3 , 4 , 5)
Evans raises several issues in relation to his convictions for attempting to dissuade a witness. First, he raises three claims of instructional error. He argues the trial court prejudicially erred in failing to instruct the jury, sua sponte, on the mistake of law defense in relation to these charges. Next, he argues the trial court prejudicially erred in instructing the jury on motive because the motive instruction conflicted with the instruction on the elements of the offense of attempting to dissuade a witness. In his final challenge related to the court's instructional duty, Evans contends that in addition to the standard instruction on the elements of the offense of attempted dissuasion, the court should have given an amplifying instruction to further clarify the intent required for attempted dissuasion.
Evans also makes other challenges in relation to his convictions and sentences on the three counts of attempted dissuasion. He argues the prosecution was precluded from charging him with three counts of attempted dissuasion because the offense of attempting to dissuade a witness constitutes a continuing offense. He also argues the evidence was insufficient to support any count of attempting to dissuade a witness, let alone three counts of this offense. As to his sentences on these counts, Evans argues the trial court erred under section 654 in imposing consecutive sentences on his three convictions for attempting to dissuade a witness, rather than staying the sentences on two of them. Lastly, Evans argues the aggregate term of 15 years eight months imposed by the court for his three convictions for attempting to dissuade a witness constitutes cruel and unusual punishment.
Except for a reversal on count 4 for insufficiency of the evidence, we reject all of Evans's contentions and will affirm his convictions and consecutive sentences on two counts of attempting to dissuade a witness.
A. Factual Background
On November 22, 2014, shortly after the altercation between Evans and Rebecca, Evans was booked into jail. In his initial days of custody, Evans made a number of phone calls to Rebecca from jail. The prosecution introduced into evidence recordings of the phone conversations between Evans and Rebecca during those calls.
Specifically, the prosecution introduced recordings of six phone calls: one call on November 22, 2014; one call on November 23, 2014; two calls on November 24, 2014; and two calls on November 25, 2014. Evans was charged with three counts of attempted dissuasion of a witness based on calls made on, respectively, November 23, 2014, November 24, 2014, and November 25, 2014. Evans was further charged, based on calls made on November 23, 2014, November 24, 2014, and November 25, 2014, with three counts of violating a protective order issued on November 22, 2014, and valid through November 29, 2014. We will summarize the contents of the recordings of calls made on November 23, 2104, November 24, 2014, and November 25, 2014, as these are the relevant calls for purposes of Evans's claims in relation to his convictions for attempted dissuasion of a witness.
1. November 23 , 2014 Jail Call
Evans and Rebecca had the following discussion, in pertinent part, during the November 23, 2014 jail call, which occurred at 1:44 p.m.:
"[Evans]: I love you, Rebecca. I really do.
"[Rebecca]: You're probably goin' back to prison.
"[Evans]: Yeah, I know.
"[Rebecca]: Did you see what they charged you with?
"[Evans]: Yeah. The only way I wouldn't go back to prison [is] if you were to drop the charges against me. That's the only [way] how. I might get in trouble and do a violation, but I wouldn't go back to prison. The [S]tate of California they can't make you—they can't make you charge
against your husband because we're married. They can't make you stand up and - some type of marriage law, but—" (Italics added.)
2. November 24 , 2014 - 4:40 p.m. Phone Call
Evans and Rebecca had the following discussion during a phone call on November 24, 2014, at 4:40 p.m.:
"[Evans]: Well, listen, I don't - listen, you're gonna do whatever you need to do, know what I mean? Which is fine. If you wanna put me away, that's fine. Alright. But that's not gonna stop me from lovin' you and that's not gonna stop from the fact that I'm sorry. You know, the fight happened I mean like we've had fights before and I've always told you it's gonna end up in me goin' to jail. But—
"[Rebecca]: (Sigh)
"[Evans]: I never thought you'd put me away for—you know what I mean?—for that long, but I just love you. That's all I ...
"[Rebecca]: It's not—
"[Evans]: [Y]ou're my wife. I love you. Alright?
"[Rebecca]: I love—I love you too, babe and it's not me putting you away. It's not me putting you away.
"[Evans]: If I need help, then I need to get help.
"[Rebecca]: You do need help.
"[Evans]: (Unintelligible) outside. I don't need to go spend the rest of my days in prison trying to get help. It doesn't help nobody.
"[Rebecca]: (Sigh) Well, I agree with that.
"[Evans]: (Unintellible) it's ok. Don't even worry about it. It doesn't even matter. The only reason I called is because I love you and I want you to know that.
"[Rebecca]: Ok.
[¶]...[¶]
"[Evans]: I didn't really think I had an issue. This is an eye opener and this is scaring the shit out of me.
"[Rebecca]: (Sigh) Alright well, I don't know.
"[Evans]: So you're ok with me callin' you?
"[Rebecca]: Yeah, you can call me.
"[Evans]: You're ok with that? You know what I mean? I don't want - I don't—
"[Rebecca]: I'm ok with it. Don't try to uh - like make me drop charges and shit. I mean I don't think it's up to me anyway.
"[Evans]: What?
"[Rebecca]: I said I don't think it's up to me anyway, but—
"[Evans]: No, I'm not tryin' to make you do nothin'. I mean that's not why I called you. I called you to tell you that I love you. I think about you every two seconds that I'm in here.
"[Rebecca]: Ok.
"[Evans]: I just wanna check on you and see how you're doin'?
"[Rebecca]: You're a good person when you're sober. You have to be sober.
"[Evans]: I know ... [It's] a real problem. 'Cause I can't control it.
"[Rebecca]: Nope. You can't.
"[Evans]: Just want you to know I love and I care about you, ok?
"[Rebecca]: Ok.
"[Evans]: I'll give you a call when I get out of court tomorrow.
"[Rebecca]: Ok.
"[Evans]: Drive safe alright?
"[Rebecca]: Alright. Be careful in there.
"[Evans]: I will."
3. November 24 , 2014 - 5:07 p.m. Phone Call
Evans and Rebecca also talked over the phone at 5:07 p.m. on November 24, 2014. Evans explained he was "blacked out drunk" during the altercation with Rebecca and had been reading police reports to figure out what had happened. Rebecca told Evans, "[Y]ou need to face what's happening." Evans responded, "Well don't be surprised if you don't see me for a couple [of] decades." Rebecca said, "I don't think you should do two decades. That's for sure," but noted, "It's out of everyone's hands right now." Rebecca added, "[Y]ou need to go to rehab." Evans said, "All right. I just wanted you to know that I have no hard feelings towards you about any of this." He added, "I plan on fixing myself when I leave here."
4. November 25 , 2014 - 9:15 a.m. Phone Call
Evans and Rebecca talked again on November 25, 2014, at 9:15 a.m. Evans said he had his son and cousin with him on the night of the altercation with Rebecca but did not remember the details. He said: "I'd never have done that to you like that." Rebecca responded: "Not sober." Evans said: "Yeah 'cause I don't." Rebecca replied: "I know you don't." Evans and Rebecca then had the following exchange:
"[Evans]: I just need your help okay?
"[Rebecca]: My help with what?
"[Evans]: Helping me not go to prison for the rest of my life.
"[Rebecca]: Well what do you mean?
"[Evans]: I don't know, like, fucking getting my money, maybe hiring me a lawyer, fuckin' - I don't know. I don't care what you do. I'm not telling you to fucking - to not - I mean you can keep the charges against me or whatever, I don't care. I mean...
"[Rebecca]: Wait that has nothing to do with me. I can't just drop charges. It's not like that. It's in the DA's hands.
"[Evans]: No that's fine it's in their hands.
"[Rebecca]: They're gonna do what they're gonna do. I am - if I have to testify then that's what I'm gonna do but I'm not gonna lie.
"[Evans]: Don't do that.
"[Rebecca]: Don't do what?
"[Evans]: Don't testify against me. Just tell 'em, be like, 'Look I don't wanna testify against my husband' and then they'll have to just go off of their charges and then from there I can get stuff dropped. Like, if you go into court it's a done deal. They're gonna get me for every high-end thing there is. How about that? Help me out that much. Just tell 'em that you don't wanna testify against your husband and then I'll fuckin' take whatever deal they give me as long as it doesn't sentence me to 10 plus years in prison.
"[Rebecca]: As long as what?
"[Evans]: It doesn't sentence me to 10 plus years in prison. Like, if it's a couple of years or fuckin' a county year or something like that then I'll take it. You - you know, I'm not gonna try to fight it 'cause I - I mean I know I fucked up but I don't know what I did and - and I fuckin' - and I - I just - I don't feel like I should be at a 100% fault for my actions, like, I was - you know what I mean, like, 'cause I don't even know...
"[Rebecca]: Why?
"[Evans]: 'Cause I was blacked out.
"[Rebecca]: But you cho- but the thing is that you chose to drink. Like, you chose that.
"[Evans]: Yeah I understand - okay I understand that.
"[Rebecca]: That makes it 100% your fault. When you choose to do that you should take whatever - whatever actions that you may do you should take responsibility for that.
[¶] ... [¶]
"[Evans]: [T]hey're gonna give me [20 years] if you go in there and testify against me. All right? Which is fine. I mean if that's what you feel like doing then I just...
"[Rebecca]: No I don't...
"[Evans]: ...that's your right
"[Rebecca]: ...think that you deserve 20 years in prison. That's not what I'm saying. You just said that you don't feel it's 100% your fault.
"[Evans]: Well fuckin'...
"[Rebecca]: I'm saying it is.
"[Evans]: I didn't...
"[Rebecca]: It is.
"[Evans]: I didn't go - okay. I know what you think. I understand that all right? You're still angry, you're mad, you're hurt, it's fine but that's like tellin' a [Tourette's] person that you ... know they have [Tourette's] [and] then send him inside a crowd and be all, 'Don't say nothing' and they fuckin' start blurtin' out shit, you know what I mean, like - 'cause he has no control over that like I had no control over my a- I was fuckin' blacked out drunk, which I'm not sayin' it's anywhere right, you know what I mean? But, um...
"[Rebecca]: I just want you to get help.
"[Evans]: I'm going to.
"[Rebecca]: And its gonna be a long road. It's gonna take a - a long time. You're not even 30 and, like, I'm sure your body's...
"[Evans]: Yeah exactly...
"[Rebecca]: ...like, about to die.
"[Evans]: ...I'm not even 30 so if I go to prison for the next 20 years I'm gonna be, like, 60 when I get out. My whole life will be completely fuckin' gone Rebecca over one—one fight that we had[,] because of my priors. Like, I wouldn't even be stressing if I had no priors whatsoever this would be a fuckin' - the only (unintelligible) fuckin' stupid but because of my prison priors they're gonna throw the book at me. And I know with the [S]tate of California and how the laws work ... legally you do not have to testify against your husband. They can pick up the case and keep going which is fine, but they won't have so much ground to stand on and maybe they'll give me a lesser - maybe they'll drop the felony of one of 'em to a misdemeanor to do a lesser term, you know what I mean? Like, I'm not asking you to go in there and be like, 'I don't want to press charges.' I'm not asking that at all, like, I would never tell you to do that. But if they
have you comin' up there standin' on the stand and say, 'Yup that was him' and the jury's there, 'Okay bye-bye Mr. Evans' and I'm fuckin' gone. That's the end of the road for me. I don't know. You don't have to make a decision but I know they're gonna be calling you once I plead not guilty so you make your decision then but we'll just keep fighting it until maybe I can [¶] ... get something." (Italics added.)
5. November 25 , 2014 - 9:42 a.m. Phone Call
Evans and Rebecca talked again on November 25, 2014, at 9:42 a.m. They had the following exchange, in pertinent part:
"[Rebecca]: They're tellin' me that I need to follow through.
"[Evans]: Follow through with what?
"[Rebecca]: With all of this.
"[Evans]: All right..."
Evans asked Rebecca to put some money on the books for him at the jail. Rebecca demurred, stating that she did not want to visit the jail in case it jeopardized her job. Rebecca and Evans argued a little bit, with Evans saying he had given up a lot for Rebecca and she could surely visit him in jail. Rebecca questioned what Evans had given up. Evans responded:
"[Evans]: I'm sorry that you feel that ... way but, I don't. You know what, I'm gonna prove it to you, I'm gonna call you every day, I'm gonna write to you, and I'm gonna love you all the way up to the day they sentence me. And then I'll continue to write you when I'm doin' life away in prison. And every day that you go to work, you can be happy you still have your job, while I'm rottin' away somewhere. Instead of just helpin' me, like, all I ask for you to do is - is just love me and be there for me, come see me fuckin' anything, somethin', like, help motivate me to even want to make it through this shit, you know what I mean ... I never asked you to drop charges, or nothin' like that, that was never even a plan of mine [to ask you] to do anything like that. I don't want you to do that. The only thing I ask was for you not to testify against me 'cause then that just fully 100% seals the deal. Like, I don't even have a chance then. Is what, all I ask and by the State of California and marriage you don't have to testify against me and you won't lose your job over that, you'd just be, like, I don't wanna testify against my husband, sorry. I don't feel like he deserves to do all that time, like, you guys can use what you got against me anyway, they're still
gonna use it against me no matter what. I'm not askin' you to drop no charges on me, I would never do that. I just know that if I take the trial and then you stand up there, that seals the deal, it's a wrap, so whatever they were gonna give me I'm gonna get the max of it. So unless they offer me, like, some awesome deal in the next couple months that I can take and be satisfied with it, and not go spend the next decade in prison, then I mean, that's awesome, but I go through this next couple months and I just, like, keep fighting it and then it gets to trial and then they bring you on the stand, it's a wrap. And now I'm getting max term whatever it was. But, no, look I don't even want to talk to you about this, I just, I want you to be by my side today, I just want to be able to talk to you. I need someone in my life right now to talk to and I'd like that to be my wife." (Italics added.)
6. Evans's Trial Testimony
Evans testified that in the days following his arrest he made a few phone calls to Rebecca from jail. With respect to the phone calls, collectively, Evans readily admitted he asked his wife not to testify against him. Specifically, he testified: "So I did ask my wife not to testify against me. And I told her that I need help. And if you guys remember listening to the phone calls, she stated the same thing, that I am a loving person and that this occurrence happened and that she doesn't feel like I should do that time, that she feels like I need help also." Evans, who had discussed the merits of his case with fellow jail inmates, drew a distinction between asking his wife not to press charges and asking his wife not to testify against him, i.e., her spouse, in court. Evans explained he did not ask his wife not to press charges; rather he only asked her not to testify in court, with the understanding that the case against him would nonetheless proceed. Evans also clarified he "never threatened [his wife] in any way or never said nothing." Evans testified that when his wife told him the authorities had made clear she had "to go through with this," he responded: "'All right. Well, then, whatever. Okay, then. That's fine. I guess I'll just - we'll go through with it. We'll fight it. We'll see what happens.'"
B. Analysis of Evans's Claims
1. Multiple Counts of Attempting to Dissuade a Witness
Evans argues he was improperly charged with three separate counts of attempting to dissuade a witness under section 136.1, subdivision (a)(2), based on the jail phone calls he made on three separate days. More specifically, he contends: "The prosecution should not be permitted to fragment the individual calls and conflate them in separate criminal acts, when they constitute a single continuous act." He further argues that charging three separate counts was improper because "all three crimes emanated from a single continuing goal to discourage [Rebecca ] from testifying." We disagree with Evans's contentions.
Evans's argument is foreclosed by section 954 and People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519 (Kirvin). Section 954 states: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses under separate counts." It further clarifies that "the defendant may be convicted of any number of the offenses charged." (§ 954.) Whether multiple counts of the same offense are proper under section 954 depends on whether the defendant engaged in a completed crime as determined by the statutory elements of the charged offense. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.) If the defendant committed multiple completed crimes under the same statute, the prosecution may properly charge each completed offense under the statute as a separate count. (Id. at pp. 1473-1477.)
In Kirvin, the defendant was charged with multiple counts of violating section 136.1, subdivision (b)(2), which establishes the crime of attempted dissuasion of a victim or witness from prosecuting a crime and is analogous to section 136.1, subdivision (a)(2) for our purposes here. Under Kirvin's reasoning, the crime of attempted dissuasion of a victim or witness under section 136.1, subdivision (a)(2), is completed once the defendant takes an immediate step toward knowingly and maliciously attempting to dissuade a victim or witness from testifying in court. (Kirvin, supra, 231 Cal.App.4th at p. 1519; see CALCRIM No. 2622; also see People v. Toledo (2001) 26 Cal.4th 221, 230, fn. 6 (Toledo) [criminal attempt occurs when a defendant acts with the requisite specific intent to commit the crime and takes a direct step towards its commission].) Under section 954, the prosecution may charge violations of section 136.1, subdivisions (a)(2) either as separate counts or as a single count encompassing a continuing course of conduct, depending on the circumstances and the exercise of prosecutorial discretion. (See People v. Velazquez (2011) 201 Cal.App.4th 219, 230 (Velasquez); People v. Salvato (1991) 234 Cal.App.3d 872 (Salvato); Kirvin, supra, 231 Cal.App.4th at pp. 1519-1520.)
The counts alleged against the Kirvin defendant were based on separate phone calls he made to his sister urging her to persuade a particular witness not to testify against him. Kirvin held that the defendant was properly charged with multiple counts of violating the statute because "[a] separate violation of section 136.1, subdivision (b)(2) was completed each time [the defendant] placed a call to his sister urging her to persuade [the witness] not to go to court." (Kirvin, supra, 231 Cal.App.4th at p. 1519.) Kirvin noted that the fact that all the relevant calls were directed towards the same goal "is irrelevant" in this context. (Ibid.) Kirvin's analysis controls the outcome here. Accordingly, we conclude that the prosecution had the discretion to charge Evans with three separate counts of attempting to dissuade a victim or witness from testifying in court.
Evans's reliance on People v. Vidana (2016) 1 Cal.5th 632, 649-651 (Vidana) and People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335 (Thomas), is unavailing, as those cases have no application here. In Vidana, our Supreme Court clarified that while section 954 permits charging a defendant with different statements of the same offense in multiple counts, a defendant cannot be convicted of different statements of the same offense, in multiple counts, based on the same act or course of conduct. (Vidana, supra, at pp. 649-651.) Vidana is inapposite because Evans was not charged with different statements of the same offense; rather, he was charged with three distinct, completed offenses of attempting to dissuade a witness that were "connected together in their commission." (§ 954.) Thomas is inapposite because it interprets the substantive offense of kidnapping in light of its particular elements, rather than in the context of section 954.
2. Sufficiency of the Evidence to Support the Convictions
Evans challenges the sufficiency of the evidence underlying his convictions on three counts of attempting to dissuade a witness, i.e., counts 3, 4, and 5. We conclude the evidence was sufficient to support Evans's convictions on counts 3 and 5, but was insufficient as to count 4.
In considering a challenge to the sufficiency of the evidence, we review the entire record to determine if any rational jury could have found the elements of the crime or special allegation were proven beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87.) In performing this analysis, we evaluate the evidence in the light most favorable to the prosecution. So long as there is substantial evidence to support the verdict, we must affirm. (Ibid.) Thus, the "test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Reilly (1970) 3 Cal.3d 421, 425.)
Section 136.1, subdivision (a)(2) prohibits "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." The crime of attempting to dissuade a witness from testifying is a specific intent crime. (People v. Young (2005) 34 Cal.4th 1149, 1210.) "Unless the defendant's acts or statements are intended to affect or influence a potential witness's or victim's testimony or acts, no crime has been committed under this section." (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.) The circumstances in which the defendant's statement is made, not just the statement itself, must be considered to determine whether the statement constitutes an attempt to dissuade a witness from testifying. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1343.) If the defendant's actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the witness from testifying, the offense has been committed. (People v. Ford (1983) 145 Cal.App.3d 985, 989-990.)
Penal Code section 136 provides: "As used in this chapter: (1) 'Malice' means an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice." (See People v. Wahidi (2013) 222 Cal.App.4th 802, 807-809 (Wahidi).)
Here, the prosecution elected to charge Evans with three separate counts of attempting to dissuade a witness; each count related to conduct that took place on a separate day. Therefore, in reviewing the sufficiency of the evidence, we are mindful that the evidence must be sufficient to convict Evans of three distinct, completed offenses, each occurring on a different day, i.e. November 23, 2014 (count 3), November 24, 2014 (count 4), and November 25, 2015 (count 5), respectively. (See Velazquez, supra, 201 Cal.App.4th at p. 231 ["Having chosen to charge defendant with dissuading a witness on three separate days, in three separate counts, the prosecution had the burden to show that defendant attempted to dissuade [the witness] on each of those days."].) Under section 136.1, subdivision (a)(2), the crime is completed once the defendant takes an immediate step toward knowingly and maliciously attempting to dissuade a witness from testifying at trial. (See Kirvin, supra, 231 Cal.App.4th at p. 1519; Toledo, supra, 26 Cal.4th at p. 230.) Furthermore, we note the trial court gave the jury a unanimity instruction in light of the fact that Evans and Rebecca had two separate phone conversations on November 24, 2014, as well as on November 25, 2014.
The court instructed the jury pursuant to CALCRIM No. 3500: "The defendant is charged with intimidating a witness [in counts 4, 5, and 6].... The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
During the November 23, 2014 jail phone call, Evans stated:
"The only way I wouldn't go back to prison [is] if you were to drop the charges against me. That's the only [way] how. I might get in trouble and do a violation, but I wouldn't go back to prison. The [S]tate of California they can't make you—they can't make you charge against your husband because we're married. They can't make you stand up and-some type of marriage law, but—"In light of the standards set forth above, we conclude that Evans's words in this phone call are sufficient evidence from which a rational jury could conclude that Evans committed a completed offense of dissuading a witness under section 136.1, subdivision (a)(2) on November 23, 2014. Accordingly, the evidence was sufficient to support Evans's conviction on count 3.
As stated above, Evans made two phone calls to Rebecca on November 24, 2014, one at 4:40 p.m. and the other at 5:07 p.m. During the 5:07 p.m. phone call, Evans said, "Well don't be surprised if you don't see me for a couple of decades." During the 4:40 p.m. phone call, Evans and Rebecca had the following discussion:
"[Evans]: Well, listen, I don't-listen, you're gonna do whatever you need to do, know what I mean? Which is fine. If you wanna put me away, that's fine. Alright. But that's not gonna stop me from lovin' you and that's not gonna stop from the fact that I'm sorry. You know, the fight happened I mean like we've had fights before and I've always told you it's gonna end up in me goin' to jail. But—
"[Rebecca]: (Sigh)
"[Evans]: I never thought you'd put me away for—you know what I mean?—for that long, but I just love you. That's all I ...
"[Rebecca]: It's not—
"[Evans]: [Y]ou're my wife. I love you. Alright?
"[Rebecca]: I love—I love you too, babe and it's not me putting you away. It's not me putting you away.
"[Evans]: If I need help, then I need to get help.
"[Rebecca]: You do need help.
"[Evans]: (Unintelligible) outside. I don't need to go spend the rest of my days in prison trying to get help. It doesn't help nobody.
"[Rebecca]: (Sigh) Well, I agree with that.
"[Evans]: (Unintellible) it's ok. Don't even worry about it. It doesn't even matter. The only reason I called is because I love you and I want you to know that.
"[Rebecca]: Ok."
The evidence shows that during the phone calls on November 24, 2014, Evans was simply referencing the long prison term he potentially faced in light of the charges against him. We conclude Evans's words during these phone calls do not constitute sufficient evidence to convict of him of a completed offense of attempting to dissuade a witness under section 136.1, subdivision (a)(2). Evans's conviction on count 4 is therefore reversed.
During the phone call Evans made to Rebecca on November 25, 2014, at 9:15 a.m., he stated:
"Don't testify against me. Just tell 'em, be like, 'Look I don't wanna testify against my husband' and then they'll have to just go off of their charges and then from there I can get stuff dropped. Like, if you go into court it's a done deal. They're gonna get me for every high-end thing there is. How about that? Help me out that much. Just tell 'em that you don't wanna testify against your husband and then I'll fuckin' take whatever deal they give me as long as it doesn't sentence me to 10 plus years in prison."Similarly, during the phone call Evans made to Rebecca on November 25, 2014, at 9:42 a.m. he stated:
"I never asked you to drop charges, or nothin' like that, that was never even a plan of mine [to ask you] to do anything like that. I don't want you to do that. The only thing I ask was for you not to testify against
me 'cause then that just fully 100% seals the deal. Like, I don't even have a chance then."Given Evans's statements, we conclude the evidence was sufficient to support his conviction on count 5 (attempted dissuasion of a witness on November 25, 2014).
3. Instructions on Motive and on Elements of Offense
In accordance with CALCRIM No. 370, the court instructed the jury regarding motive:
"The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
Evans argues this instruction conflicted with the instruction defining the elements of attempted dissuasion of a witness (§136.1, subd. (a)(2)), which provided in part that the People must prove, "one, the defendant maliciously tried to prevent or discourage Rebecca from attending or giving testimony at this criminal jury trial; two, Rebecca was a witness or crime victim; and, three, the defendant knew he was trying to prevent or discourage Rebecca from testifying and intended to do so." (See CALCRIM No. 2622.) Evans argues that, although this instruction required a finding that he maliciously tried to dissuade Rebecca from testifying at trial and intended to do so, the motive instruction contradicted this, telling the jury it did not have to make that finding. We disagree.
Evans asserts that intending to prevent or discourage Rebecca from testifying should be deemed a motive but cites no authority for this position. Intending to prevent or discourage a witness from testifying at trial is no more a "motive" in legal terms than is any other specific intent. As this court explained in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes), "We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death." (Fuentes, supra, at p. 1139.) Combined, the instructions here told the jury the prosecution must prove that Evans intended to prevent or discourage Rebecca from testifying at trial but need not prove his ultimate motive for doing so. This was not ambiguous and there is no reason to think the jury would not understand it. There was no error.
Evans's argument has a surface appeal because the common-sense concept of motive encompasses the entire chain of reasons for doing something, including an immediate intent to do something as well as more attenuated purposes that underlie the immediate intent. Thus, we could say a criminal defendant who asked a witness not to testify against him was motivated by a wish to prevent the witness from appearing at his trial, which in turn was motivated by his wish to obtain a more favorable outcome in the trial, which in turn was motivated by his desire to remain at liberty, which in turn was motivated by his desire to live his life a certain way. The jury instructions given here were well adapted to address this situation. The instructions conveyed that the prosecution was required to prove that Evans intended to dissuade Rebecca from testifying, while clarifying that the prosecution did not have to prove more attenuated motives, thereby cutting off the jury's inquiry into the chain of reasons behind the prohibited act at the appropriate point. The jury instructions did this without creating a potential for confusing a reasonable juror. (See Fuentes, supra, 171 Cal.App.4th at p. 1140.) Evans relies on cases that address conflicts in the instructions given to the jury that are far more problematic; those cases are therefore distinguishable.
Since we have resolved Evans's instructional claim on the merits, we need not address his alternative claim that counsel was ineffective for failing to object to the instructions.
4. Clarifying Instruction on the Applicable Definition on Malice
Evans argues his convictions for attempted dissuasion of a witness must be reversed because the trial court prejudicially erred in failing sua sponte to give a clarifying instruction on the meaning of the term "to interfere in any way with the orderly administration of justice," as used in CALCRIM No. 2622, the instruction on the elements of the offense (§ 136.1, subd. (a)(2)). First, this issue is forfeited because Evans failed to ask the trial court to modify CALCRIM No. 2622 for greater clarity as to the meaning of this phrase. (People v. Hart (1999) 20 Cal.4th 546, 622 [failure to request clarifying instruction at trial forfeits claim on appeal].) Second, assuming arguendo that this issue was properly preserved for review, it has no merit.
As noted above, section 136.1, subdivision (a), requires that the defendant's attempt to prevent or dissuade a victim or witness from giving testimony must be both knowing and malicious. Section 136 defines "malice" for purposes of section 136.1: "'Malice' means an intent [1] to vex, annoy, harm, or injure in any way another person, or [2] to thwart or interfere in any manner with the orderly administration of justice." Wahidi, supra, 222 Cal.App.4th at p. 807 clarified the meaning of the second definition of malice, i.e., an intent to thwart or interfere in any manner with the orderly administration of justice, after examining the legislative history of sections 136 and 136.1. Wahidi explained: "Section 136.1, subdivision (a)(2), makes it a crime to attempt to prevent a witness from testifying when the attempt is made with knowledge and malice. Substituting in the [second] definition of malice from section 136, and recognizing that preventing a witness from testifying always interferes in some manner 'with the orderly administration of justice,' section 136.1, subdivision (a)(2), makes it a crime to attempt to prevent a witness from testifying when the attempt is made with knowledge and with intent to prevent the witness from testifying [i.e., the meaning of the term "intent to ... interfere with the orderly administration of justice"]." (Wahidi, supra, at p. 807, italics added; § 136.)
Here, Evans's statements in the phone calls as well as his trial testimony reflect that he asked his wife not to testify so he could obtain a more favorable resolution to his case. The prosecutor, in turn, argued, with respect to the requisite mental state for these offenses:
"And so one of the terms in here, though, under Count 1 is "maliciously." And I want to show you the legal definition that you will be working off of.
"A person acts maliciously, under this Element 1, when he unlawfully intends to harm, annoy, or injure someone else in any way or intends to interfere in any way with the orderly administration of justice. And here in this case the orderly administration of justice is for the victim to take the stand and testify. And the defendant clearly was trying to stop that. And so that, in and of itself, fulfills that maliciousness."
Evans complains that the trial court's failure to clarify for the jury the meaning of the term, "to interfere with the orderly administration of justice" as it appears in the second definition of malice in section 136, prejudiced him. However, Evans fails to specify what precisely the trial court should have told the jury. As Wahidi explained, attempting to prevent a witness from testifying with the intent to interfere with the orderly administration of justice means committing the prohibited act with the intent to prevent the witness from testifying. (Wahidi, supra, 222 Cal.App.4th at p. 807.) In light of Evans's statements in the phone calls, his trial testimony, and the prosecutor's closing argument, had the trial court given an instruction on the meaning of the phrase "the intent ... to interfere with the orderly administration of justice" in the applicable definition of malice consistent with Wahidi, it would have made no difference to the outcome. Accordingly, Evans has failed to show prejudice and his claim fails.
In light of our conclusion, Evans's alternative claim that counsel was ineffective for failing to request the instruction in question also fails.
5. Instruction on Mistake of Law Defense
Evans argues the trial court prejudicially erred in failing sua sponte to instruct the jury on the mistake of law defense based on his good faith, but mistaken, belief that his wife had the legal right to invoke the marital privilege in this matter. We disagree.
Evidence Code sections 970 and 971 establish marital privileges, whereby (1) "a married person has a privilege not to testify against his spouse in any proceeding" (Evid. Code, § 970); and (2) "a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section" (Evid. Code, § 971). However, Evidence Code section 972 provides that the marital privilege does not apply in criminal cases in which one spouse is charged with "[a] crime against the person or property of the other spouse ... whether committed before or during marriage." Since Evans was charged with inflicting corporal injury on his wife, the marital privilege did not apply in the instant case.
The record, specifically the discussions between Evans and Rebecca in the phone calls Evans made from jail, reveals that Evans mistakenly believed the marital privilege was applicable to his case. Evans repeatedly told Rebecca, during his phone calls to her from jail, that she should simply tell the prosecution that she did not want to testify against her husband. Evans told Rebecca that California law gave her the right to refuse to testify against her husband. He also told her that she could "legally" refuse to testify against him and that doing so would not jeopardize her job as a probation officer.
For example, during the November 23, 2014 phone call, Evans stated: "The [S]tate of California they can't make you—they can't make you charge against your husband because we're married. They can't make you stand up and-some type of marriage law, but—" Next, during the 9:15 a.m. call on November 25, 2014, Evans acknowledged the charging decision was up to the District Attorney but told Rebecca to tell the District Attorney she did not want to testify against her husband. Evans said: "Just tell 'em, be like, 'Look I don't wanna testify against my husband' and then they'll just have to go off of their charges." Evans explained: "And I know with the [S]tate of California and how the laws work ... legally you do not have to testify against your husband. They can pick up the case and keep going which is fine, but they won't have so much ground to stand on and maybe they'll give me a lesser-maybe they'll drop the felony or one of 'em to a misdemeanor to do a lesser term, you know what I mean? Like, I'm not asking you to go in there and be like, 'I don't want to press charges.' I'm not asking that at all, like, I would never tell you to do that." Finally, in the 9:42 a.m. phone call on November 25, 2014, Evans said: "I never asked you to drop charges, or nothin' like that, that was never even a plan of mine [to ask you] to do anything like that. I don't want you to do that. The only thing I ask was for you not to testify against me 'cause then that just fully 100% seals the deal. Like, I don't even have a chance then. Is what, all I ask and by the State of California and marriage you don't have to testify against me and you won't lose your job over that, you'd just be, like, I don't wanna testify against my husband, sorry. I don't feel like he deserves to do all that time, like, you guys can use what you got against me anyway, they're still gonna use it against me no matter what. I'm not askin' you to drop no charges on me, I would never do that." As for the two phone calls on November 24, 2014, in those calls Evans did not directly ask Rebecca not to testify against him.
Evans did not ask Rebecca to lie on the witness stand or to distort the truth; nor did he ask her not to cooperate with the police or prosecution. Rather, he told her she had a decision to make as to whether to testify in court or not, urged her not to testify, and explained that he would likely obtain a more favorable resolution to the case were she not to testify. As for his trial testimony, Evans readily acknowledged that he had asked Rebecca not to testify against him; his ready acknowledgement suggests he honestly believed she was legally entitled to invoke the marital privilege. However, as stated above, Evans's apparent belief that Rebecca was entitled to invoke the marital privilege was in fact mistaken.
"Mistake of law is a defense where the mistake negates the specific intent required for the crime." (People v. Flora (1991) 228 Cal.App.3d 662, 669.) While ignorance of the law is not a defense to general intent crimes, "[i]t has been recognized in California since the turn of the century that ignorance or mistake of law can negate the existence of a specific intent." (People v. Vineberg (1981) 125 Cal.App.3d 127, 137 (Vineberg), citing People v. Goodin (1902) 136 Cal. 455, 458-459.) For example, "it is a valid defense to a charge of theft that the accused honestly believed that he had the right to take the subject property even if such belief was based on a misconception of the law." (Vineberg, supra, at p. 137.)
Attempting to dissuade a witness is a specific intent crime. (Wahidi, supra, 222 Cal.App.4th at p. 806.) Section 136.1, subdivision (a)(2), the applicable statute, prohibits "[k]knowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." The elements of this offense are: (1) the defendant maliciously tried to prevent or discourage a witness/victim from attending or giving testimony at a criminal trial; and (2) the defendant knew he was trying to prevent or discourage the witness/victim from testifying and intended to do so. (See CALCRIM No. 2622.) Here, the jury was instructed on these elements and further instructed that "[a] person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way or intends to interfere in any way with the orderly administration of justice." (See CALCRIM No. 2622.) The prosecution's theory at trial was that in dissuading Rebecca from testifying, Evans harbored the intent to interfere with the orderly administration of justice.
Here, even assuming Evans honestly believed Rebecca had the right to invoke the marital privilege, his claim of instructional error is unavailing. Evans attempted to persuade Rebecca, the holder of any applicable marital privilege, that she should refuse to testify against him, explaining, incorrectly, that she had a legal right to refuse to testify against him. In attempting to persuade Rebecca to invoke the marital privilege based on his mistaken conception of the applicability of the privilege, Evans nonetheless harbored the specific intent required for the crime of attempting to dissuade a witness, i.e., he knowingly and maliciously attempted to prevent a witness from testifying at his trial, with the intent to do so. (See Wahidi, supra, 222 Cal.App.4th at p. 807 ["section 136.1, subdivision (a)(2), makes it a crime to attempt to prevent a witness from testifying when the attempt is made with knowledge and with intent to prevent the witness from testifying"].) In sum, Evans's mistaken understanding of the law of marital privilege did not negate the specific intent required for the crime of attempting to dissuade Rebecca from testifying at trial. (People v. Ramsey (2000) 79 Cal.App.4th 621, 632 ["'To constitute a good defense, the mistake must be one that negatives the intent or other mental state that is an element of the crime.'"]; People v. Smith (1966) 63 Cal.2d 779, 793 (Smith) ["the law recognizes honest purpose, not dishonest ignorance of the law, as a defense to a charge of committing a crime requiring 'specific intent'"].) In turn, the defense of mistake of law is not applicable and the trial court was not required to instruct the jury on this defense either sua sponte or upon request. (See People v. Urziceanu (2005) 132 Cal.App.4th 747, 774-780 [trial court has sua sponte duty to instruct on mistake of law defense if a defendant charged with a specific intent crime is appropriately relying on this defense or there is substantial evidence that a defendant's good faith mistake of law provides a valid defense to a specific intent crime and the defense is not inconsistent with the defendant's theory of the case].)
In contrast, a person who makes an offhand comment to a victim or witness about the benefits of not getting involved in the criminal justice system or who is concerned about the safety of a victim or witness is plainly outside the scope of subdivision (a)(2) of section 136.1. (See Wahidi, supra, 222 Cal.App.4th at p. 809, fn. 4; see also § 136.1, subd. (a)(3).)
In Smith defendant's counsel asked him whether, when he entered a place to cash forged checks, he had "any knowledge" that this "would constitute a crime of burglary in California." The Smith court held the specific intent to commit burglary is simply the felonious design with which the accused enters—here to commit larceny. "In short, the law recognizes honest purpose, not dishonest ignorance of the law, as a defense to a charge of committing a crime requiring 'specific intent.'" (Smith, supra, 63 Cal.2d at p. 793.)
In light of our conclusion, Evans's alternative contention that counsel was ineffective in failing to request a mistake of law instruction also fails.
6. Application of Section 654 to Sentences on Section 136 .1 Counts
Evans argues the sentences on two of his convictions under section 136.1, subdivision (a)(2) must be stayed pursuant to section 654. In other words, he contends the court erred in imposing multiple punishments for his convictions on counts 3, 4, and 5. This argument also fails because section 654 does not bar multiple punishments for separate violations of the same statute.
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.) The statute is "intended to ensure that defendant is punished 'commensurate with his culpability.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.) The California Supreme Court has overruled prior case law to hold that "section 654 does not bar multiple punishment for multiple violations of the same criminal statute." (People v. Correa (2012) 54 Cal.4th 331, 334, italics added.) Since Evans's three convictions for attempted dissuading a witness all arose under section 136.1, subdivision (a)(2), Correa bars the application of section 654 to the convictions.
Correa clarified that the new rule had prospective application only. (Correa, supra, 54 Cal.4th at pp. 340-344.)
7. Cruel and Unusual Punishment
Evans contends his aggregate sentence of 15 years 8 months on three counts of attempting to dissuade a witness violates the prohibition against cruel and/or unusual punishment under the state and federal constitutions. (U.S. Const., 8th Amend; Cal. Const., art 1, § 17.) We disagree.
a. State Constitution
Under the California Constitution, punishment is cruel or unusual if, although not cruel or unusual in its method, it nevertheless is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch).) Lynch articulated three relevant factors in analyzing whether a punishment is cruel or unusual under the California Constitution: (1) the nature of the offense and the offender; (2) comparison of the punishment with the penalty for more serious crimes in the same jurisdiction; and (3) comparison of the punishment to the penalty for the same offense in different jurisdictions. (Lynch, supra, at pp. 425-427.)
Evans only addresses the first Lynch factor, arguing that his sentence is disproportionately harsh in relation to the facts of his crime and his individual culpability. However, Evans was punished under the three strikes scheme, whereby his punishment reflects not just the instant offenses but also his recidivism. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366.) Concluding that harsher punishment can justifiably be imposed on defendants who repeatedly commit felonies, the United States Supreme Court and California courts have rejected cruel and/or unusual punishment challenges even to life sentences for felonies that are neither violent nor statutorily classified as a serious offense. (Ewing v. California (2003) 538 U.S. 11, 25-31 (Ewing); People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433 [25-year-to-life sentence for stealing a magazine]; People v. Mantanez, supra, at p. 366 [25-year-to-life sentence for possession of heroin and receiving stolen property]; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338 [25-year-to-life sentence for theft of approximately $600 worth of clothing from department store].) It is only in rare instances, such as when the defendant's current offense was a nonviolent regulatory offense that posed no direct or immediate danger to society, that a court might find merit in a cruel and/or unusual punishment challenge to a recidivist sentence. (See, e.g., People v. Carmony (2005) 127 Cal.App.4th 1066, 1077-1081, 1086-1088 [25-year-to-life sentence for "passive, harmless and technical" registration violation constituted cruel and/or unusual punishment].) Here, the trial court noted that in sentencing Evans, it could appropriately consider the factual context of Evans's offenses, notwithstanding the fact that Evans was not convicted of the related charges of domestic violence and criminal threats. Furthermore, Evans, who was 29 years old at the time of sentencing, had a prior conviction that counted both as a strike and a serious felony, several other felony convictions, and numerous misdemeanor convictions.
Lynch's first factor does not support Evans's cruel or unusual punishment challenge. Evans does not address the other two relevant factors specified in Lynch. Accordingly, Evans's challenge to his sentence pursuant to the state constitution cannot succeed.
b. Federal Constitution
Nor does Evans's challenge succeed under the federal constitution, as the Eighth Amendment "'forbids only extreme sentences that are "grossly disproportionate" to the crime.'" (Ewing, supra, 538 U.S. at p. 23; Harmelin v. Michigan (1991) 501 U.S. 957, 963-964.) The instant matter is not, under any analysis, "'the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.'" (Ewing, supra, at p. 30; Harmelin, supra, at p. 961 [sentence of life in prison without possibility of parole, for possessing 672 grams of cocaine, was not cruel and unusual punishment].) II. Evans's Misdemeanor Convictions and Concurrent Sentences for Violating a Court-Issued Emergency Protective Order (Counts 7 , 8 , 9)
A. Admission of Certified CLETS Printout as Evidence of the Existence and Service on Evans of the Emergency Protective Order
CLETS stands for California Law Enforcement Telecommunications System.
Evans was charged under section 166, subdivision (c)(1) with three counts of violating a court-issued emergency protective order. Under section 166, subdivision (c)(1), "a willful and knowing violation of a protective order" is a misdemeanor. Accordingly, as to the section 166 charges, the jury was instructed that, in order to convict Evans, it had to find the court had issued a written protective order and Evans knew of the order, had the opportunity to familiarize himself with its terms, and willfully violated it ("willfully" was defined as an act that is done willingly or on purpose). (See CALCRIM No. 2701.)
The prosecution did not introduce into evidence a copy of the actual court order or witness testimony addressing its issuance and service on Evans. Rather, the prosecution relied entirely on a certified CLETS record memorializing the fact that the court had issued an emergency protective order on November 22, 2014, to be in effect until November 29, 2014, restraining Evans from contacting Rebecca. The CLETS record included a notation that the order was served on Evans by Officer Gilbert (Badge No. 1229) at 20:59 on November 22, 2014.
Evans argues the CLETS record was inadmissible hearsay and the trial court committed prejudicial error in admitting it. He further argues that without the CLETS record, the evidence was insufficient to sustain his convictions under section 166, subdivision (c)(1). We disagree that the CLETS record was inadmissible. In turn, we affirm Evans's convictions on three counts of violating a court-issued protective order (counts 7, 8, 9).
Our conclusion is compelled by People v. Martinez (2000) 22 Cal.4th 106 (Martinez) and People v. Dunlap (1993) 18 Cal.App.4th 1468 (Dunlap), both of which held that the respective CLETS records at issue in those cases were admissible under Evidence Code section 1280. Evidence Code section 1280 provides:
"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:"A trial court has broad discretion in determining whether a party has established these foundational requirements." (Martinez, 22 Cal.4th at p. 120.) "Its ruling on admissibility 'implies whatever finding of fact is prerequisite thereto; a separate or formal finding is ... unnecessary.'" (Ibid; see Evid. Code, § 402, subd. (c).) "A reviewing court may overturn the trial court's exercise of discretion '"only upon a clear showing of abuse."'" (Martinez, supra, at p. 120.) Thus, we must determine whether admission, under Evidence Code section 1280, of the CLETS document proffered by the People, would constitute an abuse of discretion on the part of the trial court.
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Evidence Code section 1280 "permits the court to admit an official record or report without necessarily requiring a witness to testify as to its identity and mode of preparation if the court takes judicial notice [of the statutes prescribing the method of preparing the report]." (Cal. Law Revision Com. com., reprinted at 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1280, p. 347); see Martinez, supra, at p. 129; Dunlap, supra, 18 Cal.App.4th at p. 1477.) The CLETS record at issue in Martinez was uncertified; accordingly, our Supreme Court held it was admissible in light of testimony from an investigator from the District Attorney's Office establishing that it was retrieved from the CLETS system. However, the CLETS record at issue in Dunlap was certified and consequently that court held it was admissible without witness testimony regarding its identity. (Dunlap, supra, at pp. 1477, 1481.) The CLETS document proffered by the People in the instant case was certified by the Kern County District Attorney's Office and hence witness testimony regarding its identity was not required.
The record contained the following certification: "This is to certify that the above is a true and original document received from the California Law Enforcement Telecommunication System, by the District Attorney's Office." The certification stamp was dated 1/29/15 and signed by a clerk in the District Attorney's Office.
In Martinez and Dunlap, the CLETS records at issue contained a compilation of the respective defendant's criminal history and were offered as proof of the defendant's prior convictions. Both Martinez and Dunlap held that the respective CLETS records satisfied Evidence Code section 1280's first requirement, i.e., that the proffered "writing was made by and within the scope of duty of a public employee." (Evid. Code, § 1280, subd. (c).) In reaching this conclusion, the Martinez and Dunlap courts relied on the existence of various statutes "dealing with the recording and reporting of a person's criminal history," which showed that CLETS records containing such information were generated based on input from government employees. (See Dunlap, supra, 18 Cal.App.4th at p. 1477-1478; Martinez, supra, 22 Cal.4th at pp. 121-126.) Martinez clarified that "these statutory reporting and recording duties are significant because, under Evidence Code section 664, '[i]t is presumed that official duty has been regularly performed.'" (Martinez, supra, 22 Cal.4th at p. 125.) Dunlap further explained, "[t]he trial court was required to take judicial notice of those statutes [under Evidence Code section] 451, [subdivision] (a)" and "[s]uch notice is sufficient support for the court's implied finding that the first foundational requirement of Evidence Code section 1280 ("The writing was made by and within the scope of duty of a public employee") was satisfied." (Dunlap, supra, 18 Cal.App.4th at p. 1478.)
Evidence Code section 451 provides that "[j]udicial notice shall be taken of" the "public statutory law of this state."
Similarly, here it is clear that the CLETS record introduced by the People "was made by and within the scope of duty of a public employee," as various statutes require government employees to report information regarding the issuance and service of protective orders to the Department of Justice, and in turn require the Department of Justice to record that information in databases which are available to law enforcement through the CLETS system. (See, e.g., Fam. Code, §§ 6271 [duties of officer who requested emergency protective order], 6380 [maintenance of electronic information in domestic violence restraining order system and availability of that information through CLETS], 6381 [use of information maintained in domestic violence restraining order registry for enforcement of protective orders].) Accordingly, the CLETS record proffered by the People satisfied the first foundational requirement of Evidence Code section 1280.
Martinez and Dunlap next found that the CLETS records at issue in those cases satisfied the second foundational requirement of Evidence Code section 1280, i.e., that the proffered "writing was made at or near the time of the act, condition, or event." (Evid. Code, § 1280, subd. (b).) In reaching this conclusion, Martinez and Dunlap again relied on the statutes dealing with the recording and reporting of a person's criminal history information and Evidence Code section 664 (establishing a presumption that official duty was regularly performed). The Martinez and Dunlap courts found that applicable statutes indicated that law enforcement agencies were required to report such information on a timely basis to the Department of Justice, which in turn was required to timely record it. (See Martinez, supra, 22 Cal.4th at pp. 126-128; Dunlap, supra, 18 Cal.App.4th at pp. 1478-1479.) Similarly, the statutes governing the reporting and recording of information regarding the issuance and service of protective orders impose expedited duties in light of the time-sensitive nature of protective orders and the importance of proper enforcement of such orders. (See Fam. Code, § 6380, subds. (a), (b), (d)(1) and (d)(2).) In light of these expedited reporting and recording duties, we conclude that the second foundational requirement ("[t]he writing was made at or near the time of the act, condition, or event") was satisfied here.
The final foundational requirement of Evidence Code section 1280 is that "[t]he sources of information and method and time of preparation were such as to indicate [the record's] trustworthiness." (Evid. Code, § 1280, subd. (c).) "'The trustworthiness requirement ... is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.'" (Dunlap, supra, 18 Cal.App.4th at p. 1479.) Dunlap found the CLETS record at issue there was trustworthy in terms of the sources of the information reflected in it because these sources were government agencies. (Dunlap, supra, 18 Cal.App.4th at p. 1479.) Dunlap further noted: "While there is no direct evidence as to the method and time of preparation, we again believe the trial court could properly rely on judicial notice of the pertinent statutes and consider the presumption that official duty was regularly performed to satisfy itself that the record was sufficiently trustworthy." (Dunlap, supra, 18 Cal.App.4th at pp. 1479-1480.) Martinez adopted Dunlap's reasoning in this regard. (Martinez, supra, 22 Cal.4th at p. 130.) Following the rationale of these cases, and in light of the fact that the issuance and service of protective orders is recorded and reported by government employees and agencies as part of their statutory duties, we conclude the trial court did not abuse its discretion in finding that the CLETS record proffered by the People was trustworthy under Evidence Code section 1280, subdivision (c). (Dunlap, supra, 14 Cal.App.4th at p. 1479 ["'Whether the trustworthiness requirement has been met is a matter within the trial court's discretion.'"].)
We find no error in the trial court's admission of the CLETS document in question. In view of this conclusion, we need not consider Evans's related claim that, absent the CLETS document, there was insufficient evidence to support his convictions for violating a protective order.
B. Admission of the CLETS Record and the Right to Confrontation
Evans makes a cursory and undeveloped argument asserting that the CLETS document introduced into evidence by the People as proof of the existence of a restraining order against him as well as service of the order on him, violated his right to confront witnesses under the Sixth Amendment to the United States Constitution. (See Crawford v. Washington (2004) 541 U.S. 36, 61; Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527 (Melendez-Diaz.) In a couple of sentences, with no analysis or discussion of legal authorities, he makes the bare argument: "At least as to the key issue of whether appellant was served, the [CLETS document] was testimonial" as "[t]here can be no other conceivable purpose for inclusion of service information other than litigation." We reject this argument outright as the primary purpose for the recording and reporting requirements applicable to protective orders, including information regarding service of such orders, is to facilitate compliance with the orders by keeping accurate records (thereby ensuring that protective orders are duly served and do not fall through the cracks) and also to facilitate their enforcement in myriad ways, not simply through litigation. (Cf. Bullcoming v. New Mexico (2011) 564 U.S. 647, 664 ["A document created solely for an 'evidentiary purpose'... made in aid of a police investigation, ranks as testimonial."]; Melendez-Diaz, supra, 129 S.Ct. at p. 2532 [formalized, signed forensic reports available for use at trial are "testimonial statements" and certifying analyst is a "'witness' for purposes of the Sixth Amendment"].)
The People's brief fails to address this issue.
C. Application of Section 654 to Sentences on Section 166 Counts
Evans argues the sentences on two of his convictions under section 166, subdivision (c)(1) must be stayed pursuant to section 654. In other words, he contends the court erred in imposing multiple punishments for his convictions on counts 7, 8, and 9 for violating a protective order. As explained above, this argument fails because section 654 does not bar multiple punishments for separate violations of the same statute. (People v. Correa (2012) 54 Cal.4th 331, 334 ["section 654 does not bar multiple punishment for multiple violations of the same criminal statute" italics added].) Since Evans's three convictions for violating a protective order all arose under section 166, subdivision (c)(1), Correa bars the application of section 654 to the convictions. III. Cumulative Error
Finally, Evans contends there was cumulative error. A series of errors, though independently harmless, may in some circumstances rise to the level of reversible and prejudicial error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Hill (1998) 17 Cal.4th 800, 844.) That is not the case here, as we have identified no errors that, collectively, would serve to prejudice Evans.
DISPOSITION
Evans's conviction on count 4 is reversed. The judgment is otherwise affirmed. The matter is remanded for resentencing consistent with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------