P. v. Boyd CA2/8

Filed 5/30/13 P. v. Boyd CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B240590
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA051576)
v.
STEPHEN BOYD,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los Angeles County.
Hayden Zacky, Judge. Affirmed.
Koryn & Koryn and Sylvia Koryn for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and
Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Stephen Boyd was convicted by jury of two counts of
dissuading a witness by force or threat, two counts of assault with a semi-automatic
firearm, and one count of making criminal threats. Special allegations that defendant
personally used a firearm in the commission of the offenses and that the crimes were
committed for the benefit of a criminal street gang were found true.
Defendant contends the trial court committed prejudicial error by failing to
instruct sua sponte on all elements of the offense of dissuading a witness by force or
threat. Defendant further contends his prior juvenile adjudication should not have
been used as a qualifying prior to enhance his sentence under the Three Strikes law.
Defendant concedes the Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007(Nguyen) has rejected his argument, and that we are bound to follow Nguyen, but seeks
to preserve the issue for further consideration.
We conclude there was no instructional error with respect to the two counts of
dissuading a witness, and, pursuant to Nguyen, we reject defendant’s claim of
sentencing error. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant has not raised a substantial evidence question for review, we
summarize only those facts material to the appellate issues, as well as additional facts
for context.
In August 2010, Tedd Jojola and his mother, Susane Gonzalez, lived with
several other family members at their home in Palmdale, California. The family had
been away for a few days, and when they returned home, the front door had been
broken into and was wide open, and their home had been burglarized. Several items of
property were missing, including a large television, stereo speakers and a clothes
dryer. They contacted law enforcement and made a report. The sheriff’s deputies that
responded stated they believed it looked like the type of home burglary committed by
a neighborhood gang known as Ballers on Point or Bloods on Point (B.O.P.). Mr.
Jojola knew of defendant from the neighborhood and that his nickname was “Big
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O.P.” He accompanied the deputies in their patrol car and pointed out the home where
he believed defendant sometimes lived.
On January 14, 2011, a black van pulled up in front of Mr. Jojola’s home while
he was outside planting in the garden with his mother. He was immediately concerned
because, after the burglary of their home in August, individuals had been driving by
their house, throwing things at the house and yelling at his family, including, “[W]e
didn’t f------ rob your house.”
The van stopped and defendant got out of the passenger side, and headed
toward Mr. Jojola. Defendant, who was holding a black handgun, said to Mr. Jojola,
“You f------ rat. You should have never snitched on B.O.P. . . . You’re f------ dead.”
Defendant then proceeded to pistol-whip him with a handgun about his head and face.
Defendant also punched Mr. Jojola on the side of the head and ripped his shirt, telling
him you “should have never told the police where [we] lived at.” Defendant repeated
that he was going to kill them.
Mr. Jojola’s mother, Ms. Gonzalez, ran over to her son and tried to push him
away from defendant. Her son looked like he was going to faint, but they were
eventually able to run into the house. Ms. Gonzalez locked the door and looked
through the peephole. Defendant was still outside pointing the gun in her direction
towards the door. Ms. Gonzalez yelled she was going to call 911. Defendant yelled,
“[We] ain’t done with [you] yet.” Ms. Gonzalez then called 911. Several deputies
arrived within a few minutes, as did an ambulance that took her son to the hospital for
treatment.
Based on Ms. Gonzalez’s report, a broadcast was put out regarding possible
suspects in the assaults on her and her son, and several deputies on patrol eventually
detained defendant during a traffic stop. Mr. Jojola later identified defendant in a six-
pack photographic line-up.
Defendant, by his own admission during a conversation with a patrol officer,
was a member of the B.O.P. gang, and has several gang-related tattoos. B.O.P. is an
active gang in the Palmdale area, with some 200 documented members, primarily
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engaged in vandalism, narcotics sales, assaults, vehicle theft and burglaries. The
gang’s color is red and they have recognized gang signs and symbols, including dollar
signs and dice.
Defendant was charged by amended information with two counts of dissuading
a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1))1 (counts 1 and 3), two
counts of assault with a semi-automatic firearm (§ 245, subd. (b)) (counts 2 and 4), and
one count of making criminal threats (§ 422) (count 5). Personal use of a firearm and
criminal street gang special allegations were alleged as to all five counts (§§ 186.22,
subd. (b)(4)(C), 12022.5, subd. (a)). It was further alleged defendant had suffered a
prior juvenile adjudication in 2004 for robbery (§ 211) within the meaning of section
667, subdivision (b), and section 1170.12, subdivisions (a) through (d).
Following a jury trial, the jury found defendant was guilty of all counts and
found true the special allegations that defendant personally used a firearm and acted
for the benefit of, in association with, or at the direction of a criminal street gang. In a
bifurcated proceeding before the court, defendant waived his rights to a jury and court
trial and admitted the prior juvenile adjudication. The court sentenced defendant to a
state prison term of 48 years to life, with 323 days of presentence custody credit, and
ordered payment of various fines and fees.
Defendant’s notice of appeal was rejected for filing by the superior court as
untimely. This court granted defendant’s application for relief. This appeal followed.
DISCUSSION
1. There Was No Instructional Error.
Defendant contends the trial court failed to discharge its duty to sua sponte
instruct the jury as to the specific intent required for the offense of dissuading a
witness by force or threat (counts 1 and 3). Specifically, defendant argues the
modified version of CALCRIM No. 2623 failed to instruct the jury on the requisite
specific intent for a felony dissuading a witness count brought pursuant to subdivision
1 All further undesignated section references are to the Penal Code.
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(c)(1) of section 136.1. We exercise our independent judgment in determining
whether the trial court fulfilled its sua sponte duty to instruct on all the general
principles of law governing the case. (People v. Posey (2004) 32 Cal.4th 193, 218.)
We reject defendant’s claim of error.
The court instructed the jury with both CALCRIM No. 2622 and CALCRIM
No. 2623 regarding the offense of dissuading a witness, as it was required to do. The
court read these instructions to the jury along with all the other instructions before
counsel delivered their closing arguments, and the court sent a set of the instructions,
printed in landscape format, into the jury room when the case was submitted to the
jury for deliberations. The printed versions of CALCRIM Nos. 2622 and 2623 appear
as follows:
“2622. Dissuading a Witness
“The defendant is charged in Counts 1 and 3 with dissuading a witness
by force or threat of force.
“To prove that the defendant is guilty of this crime, the People must
prove that:
“1. The defendant tried to discourage Tedd Jojola and/or
Susana
Gonzalez from cooperating or providing information so
that a
complaint could be sought and prosecuted, and from
helping to prosecute that action;
“2. Tedd Jojola and/or Susana Gonzalez was a witness or
crime
victim;
“AND
“3. The defendant knew he was trying to discourage Tedd
Jojola
and/or Susana Gonzalez from causing an arrest and/or
prosecution and intended to do so.
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“As used here, witness means someone or a person the defendant
reasonably believed to be someone:
● “Who knows about the existence or nonexistence of facts
relating to a crime;
“OR
● “Who has reported a crime to a peace officer.
“A person is a victim if there is reason to believe that a federal or state
crime is being or has been committed or attempted against him or her.
“It is not a defense that the defendant was not successful in preventing or
discouraging the witness or victim.
“It is not a defense that no one was actually physically injured or
otherwise intimidated or dissuaded.”
“2623. Dissuading a Witness by Threat of Force
“If you find the defendant guilty of dissuading a witness, you must then
decide whether the People have proved the additional allegation that the
defendant used or threatened to use force.
“To prove this allegation, the People must prove that:
“The defendant used force or threatened, either directly or indirectly, to
use force or violence on the person or property of a witness or victim.
“The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.”
Defendant does not raise any specific objection to the form of CALCRIM No.
2622. Defendant’s claim of error is that CALCRIM No. 2623 did not repeat the
specific intent element that was already included in CALCRIM No. 2622. Defendant
argues that “[n]othing in CALCRIM No. 2623 told the jury that the force or threat of
force had to be used with the specific intent of preventing or dissuading a witness from
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testifying.” The specific intent requirement for the offense of dissuading a witness is
plainly set forth as element number three in CALCRIM No. 2622: “The defendant
knew he was trying to discourage Tedd Jojola and/or Susana Gonzalez from causing
an arrest and/or prosecution and intended to do so.” The Bench Notes to the
instruction so provide. “Because the offense always requires specific intent, the
committee has included the knowledge requirement with the specific intent
requirement in element 3.” (Judicial Council of Cal., Crim. Jury Instns. (2012) Bench
Notes to CALCRIM No. 2622, p. 544.) We are not persuaded the court was required
to repeat this phrase in the course of reading and delivering the printed CALCRIM No.
2623.
No jury hearing these two instructions read aloud by the court, one right after
the other, reasonably could be confused about whether defendant could be guilty of
dissuading a witness by force or threat if they found defendant did use force or threats
but did not intend to discourage the victims from causing an arrest and/or prosecution.
Nor would any reasonable jury reading the printed form of the instructions in the jury
room be confused on this point. Defendant’s argument would have us slice and dice
the instructions as if each one were heard and understood in isolation. Defendant
ignores that the court instructed the jury to “[p]ay careful attention to all of these
instructions and consider them together.” (People v. Musselwhite (1998) 17 Cal.4th
1216, 1248 (“‘“[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.”’ [Citation.]”)
The instructions, viewed as a whole, plainly connected the allegations of threats
and force to the offense of witness dissuasion. CALCRIM No. 2623, as given,
unequivocally directed the jury that if they found defendant guilty of witness
dissuasion (the elements of which were set forth in CALCRIM No. 2622), then the
jury had to determine whether the prosecution had proved beyond a reasonable doubt
the additional allegation of whether defendant used force or threatened to use force in
so acting. The jury was also instructed on reasonable doubt (CALCRIM No. 220),
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circumstantial evidence of intent or mental state (CALCRIM No. 225), and the
requirement of their being a union of act and intent (CALCRIM No. 252), among other
instructions.
The threats made to both victims were unambiguously directed to their having
reported information to the police about the burglary, defendant’s status as a possible
suspect, and cooperating with law enforcement’s investigation. Mr. Jojola testified
that defendant said, “You f------ rat. You should have never snitched on B.O.P. . . .
You’re f------ dead,” and defendant then proceeded to pistol-whip him with a handgun.
Mr. Jojola also stated that defendant told him that he “should have never told the
police where [defendant and his accomplices] lived at. And he said that he was going
to kill us.” These were not ambiguous threats that a reasonable jury could have
interpreted as menacing but not necessarily related to dissuading Mr. Jojola and Ms.
Gonzalez from cooperating with law enforcement.
For the jury to accept that defendant made the threats testified to by Mr. Jojola
and Ms. Gonzalez, as they did, necessarily means the jury found the threats were made
with the requisite specific intent. (See People v. Brenner (1992) 5 Cal.App.4th 335,
339 [instruction that dissuading a witness is general intent crime was error, but was
harmless beyond a reasonable doubt because statement that “‘if [the victim] called the
police, [the defendant] would kill’” him was unambiguous as to intent such that if jury
believed defendant made statement, they found the requisite specific intent]; People v.
Jones (1998) 67 Cal.App.4th 724, 727-728 [same]; see also People v. Young (2005) 34
Cal.4th 1149, 1211-1212.) The jury instructions therefore could not have misled the
jury as to the essential element of specific intent.
2. The Prior Strike.
Defendant raises a constitutional challenge to the use of his 2004 juvenile
adjudication for robbery as a prior conviction for sentence enhancement purposes
under California’s Three Strikes law. However, defendant acknowledges that Nguyen,
supra, 46 Cal.4th 1007 controls here and forecloses his claim. Indeed, Nguyen
expressly held that despite the lack of a right to a jury trial in a juvenile adjudication, a
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prior juvenile adjudication is properly considered for sentence enhancement purposes.
(Id. at pp. 1019-1025.) Defendant nevertheless raises the issue to preserve his right to
challenge the holding in Nguyen. We are bound to follow Supreme Court precedent
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore
do not discuss the issue further.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
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