Opinion
F072438
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. EUGENE LOUIS JONES, Defendant and Appellant.
Melissa Baloian Sahatjian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CMS-1524)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Melissa Baloian Sahatjian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Black, J.†
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A jury convicted defendant Eugene Louis Jones of criminal threats (Pen. Code, § 422; count 2), intimidating a witness by force or threat of force (§ 136.1, subd. (c)(1); count 3), misdemeanor assault (§ 240; count 1), and misdemeanor spousal battery (§ 243, subd. (e)(1); count 4). Defendant admitted he had a prior conviction for violating section 245, subdivision (c), that qualified as a serious felony conviction (§ 667, subd. (a)(1)) and as a strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced defendant to a total prison term of 12 years four months. On appeal, defendant contends insufficient evidence supports his conviction of intimidating a witness by force or threat of force. We affirm.
All further statutory references are to the Penal Code.
The jury found defendant not guilty of the greater offense of assault with a deadly weapon (§ 245, subd. (a)(1)) charged in count 1. --------
FACTS
On April 26, 2015, Lilly, defendant's wife of 33 years, woke up around 7:00 a.m., got up, made coffee, and, still wearing her pajamas and robe, went into the garage where she saw defendant. After Lilly returned inside the house, defendant came in and said he did not like the way her face looked when she came into the garage. Lilly was sitting on the couch drinking coffee. Defendant came over, took the cup, spilled the coffee on her, and flung the cup at the TV. Defendant then smashed his own cup of coffee on the ground, breaking the cup.
After defendant broke the cup, Lilly got up and went into the kitchen. Defendant came up behind her and held a long ("12 to 18 inches") kitchen knife up to her neck with one hand. Lilly could not remember defendant's words but recalled he was talking very loudly. Asked to describe his demeanor, Lilly testified defendant was "just raging." Lilly confirmed her heart was beating quickly and she feared for her life. Defendant held the knife to her throat for less than a minute before he threw the knife against the wall and the knife fell onto a chair.
When Lilly started walking to the living room, defendant came behind her and pushed her down on the floor, where she fell on her hands and knees. Lilly then got up and sat down on one of the living room couches and defendant sat on a separate couch. When asked if defendant made any statements while they sat, Lilly testified: "Yeah, he—he kept just saying—he just said, 'Not one more word.' He didn't want me to say one more word or he was going to kill me. He said, 'Just one more word, just one more word.' " Defendant's voice was raised and angry.
Lilly sat as still as she could and did not say anything back to defendant, explaining she was afraid that if she said anything, defendant would "just lose it." At one point while they were in the living room, defendant came over and choked Lilly's neck, squeezing her neck "a little bit" with one hand for less than a minute. Lilly did not sustain any injuries from defendant choking her, but she was scared and wanted to get away from him.
After he strangled her, defendant just sat on the couch and Lilly kept hoping he would leave the room. Lilly finally got up and walked to her room so she could get dressed. Defendant followed her, pushed her on the bed, and strangled her again with one hand for less than a minute. Lilly testified that he looked at her and said something like, "Dead face" or "you have a dead face" and then told her, "You're going to be dead because I'm going to kill you."
Based on how he was talking and acting that morning, as well as his past physical and verbal abuse of her throughout their marriage, Lilly was afraid defendant was going to carry out his threat that morning to kill her. In addition, Lilly testified that, during their marriage, defendant, "[e]very so often ... would say that he's going to slice my throat."
After defendant made the "dead face" comment, Lilly started crying and asked defendant to leave her alone. Defendant left and came back into Lilly's bedroom three times. One of the times, defendant asked Lilly if she was going to call the police and she said no. Lilly testified that when defendant asked her if she was going to call the police, she wanted to call but was afraid defendant would harm or kill her if he knew she was calling the police. The entire incident from the beginning up to this point had lasted about 20 to 30 minutes.
After defendant asked Lilly if she was going to call the police and left the room again, Lilly got dressed and walked down the hall. She saw him standing by the front door, which was open, looking out the screen door. After passing behind defendant, who did not appear to notice her, Lilly walked through the living room, the kitchen, and the garage and then "took off" in her car. Defendant was able to see her get in her car and came outside the house, but she just continued to drive. After stopping to get some food, Lilly drove to the mall where she felt safe because of the presence of a security guard. She called the police department later in the afternoon and spoke with Officer Joshua Shearer.
Shearer testified he met Lilly at her daughter's house around 2:00 p.m. After taking Lilly's statement, Shearer went to Lilly's house and tried to make contact with defendant. When the officer arrived, he could see defendant standing at the kitchen window, which faced the street. Defendant "dropped what he was doing and ran into the other room." Shearer entered the house a few minutes later. Defendant was eventually apprehended after he was found hiding under a mattress in the master bedroom.
DISCUSSION
Defendant challenges the sufficiency of the evidence supporting his conviction of intimidating a witness by force or by a threat of force. Specifically, he contends there was insufficient evidence to support the prosecution's theory that his statement asking Lilly if she was going to call the police was intended to dissuade or prevent her from reporting his crimes against her to the police. Defendant further contends there was insufficient evidence that any such attempt on his part to dissuade Lilly from making a crime report was accompanied by force or a threat of force.
In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution resting primarily on circumstantial evidence. (People v. Watkins (2012) 55 Cal.4th 999, 1020.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must accept logical inferences that the jury might have drawn from the evidence even if we might have concluded otherwise. (People v. Streeter, supra, at p. 241.)
Under section 136.1, anyone who attempts to prevent or dissuade another person who has been the victim of a crime from reporting a crime to law enforcement is guilty of an offense that may be punished as either a misdemeanor or a felony. (§ 136.1, subd. (b)(1).) When such attempt is "accompanied by force or by an express or implied threat of force," it becomes a felony. (§ 136.1, subd. (c)(1).)
"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.] In other words, 'section 136.1 is a specific intent crime.' " (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347.)
Criminal dissuasion may be inferred from the defendant's words or conduct; the defendant need not say, "Don't testify," or make an equivalent remark. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1345-1346.)
A violation of section 136.1 is based upon the defendant's course of conduct, because the language of the statute "focuses on an unlawful goal or effect, the prevention of [reporting a crime], rather than on any particular action taken to produce that end. 'Prevent' and 'dissuade' denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal." (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) Thus, in order to determine whether a defendant's conduct constitutes a violation of section 136.1, the entire context of the interaction between the defendant and the victim or witness must be examined.
Examining defendant's statement asking Lilly if she was going to call the police in the context of the entire interaction between them, the jury here could reasonably infer that defendant intended to prevent or dissuade Lilly from reporting defendant's crimes against her that morning to the police. In the 20- to 30-minute period preceding his statement, defendant engaged in acts of terrorizing physical and verbal behavior towards Lilly, creating an atmosphere in which she reasonably feared for her life and was afraid to speak or move in a way that might further inflame defendant's rage and cause him to hurt or kill her. According to Lilly's testimony, when they were in the living room, defendant repeatedly warned her not to say "one more word" and threatened to kill her if she did. In light of these and defendant's other threats during the incident, and his intimidating physical behavior, which included coming into Lilly's bedroom three times, when she had asked him to leave her alone, the jury could reasonably infer that defendant's asking Lilly if she was going to call the police was specifically intended to dissuade her from doing so.
We further conclude that there was sufficient evidence that defendant's attempt to dissuade Lilly from making a police report was accompanied by an implied threat of force. In determining whether there was an implied threat of force, we consider not just the plain meaning of the words, but also the "inherent baggage of connotation." (People v. Mendoza, supra, 59 Cal.App.4th at p. 1344.) Moreover, we consider the circumstances in which a statement is made, not just the statement itself, to determine whether a statement constitutes an attempt to dissuade a witness by force. (Ibid.) Under the circumstances discussed above, the jury here could reasonably conclude, not only that defendant's question asking Lilly if she was going to call the police carried an implied threat of force, but also that it would have been naïve and dangerous for Lilly to interpret defendant's question as anything but a veiled threat to harm her if she did. Thus, Lilly wisely answered no and waited until after she was able to remove herself to a safe location before reporting defendant to the police.
DISPOSITION
The judgment is affirmed.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.