People v. Porter CA2/1

Filed 5/23/22 P. v. Porter CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B313410
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA151840)
v.
DARRELL CORNELIUS PORTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger Ito, Judge. Affirmed in part, reversed and
remanded in part with instructions.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
A jury convicted defendant and appellant Darrell Cornelius
Porter of assault to commit a felony under Penal Code1 section
220, subdivision (a), simple assault under section 240, and of two
counts of attempting to dissuade a witness under section 136.1,
subdivision (a)(2). In a bifurcated proceeding, the trial court
found the allegation that Porter had a prior serious felony
conviction for carjacking under Michigan law to be true and
imposed second strike sentences to three counts, plus a
consecutive five-year term as a prior serious felony enhancement
under section 667, subdivision (a)(1).
On appeal, Porter contends that the evidence on which the
prosecution relied was insufficient to support two separate
convictions for attempting to dissuade a witness under section
136.1, subdivision (a)(2). Respondent does not disagree. We
reverse the first conviction under section 136.1, subdivision (a)(2)
and remand for resentencing.
Porter further contends that the true findings on the prior
conviction allegations must be reversed because carjacking under
Michigan law does not contain the same requirements as
carjacking under California law, and there is insufficient
evidence to support that his prior conviction qualifies as a serious
felony. Respondent does not dispute that the elements of the
California and Michigan carjacking offenses differ but argues
that the only additional requirement for carjacking under
California law as compared to Michigan law—that the taking of
the motor vehicle must be in the victim’s presence—was satisfied
1 Allfurther statutory references are to the Penal Code,
unless otherwise noted.
2
here, as evidenced by a presentence investigation report that was
admitted into evidence.
The trial court’s role in establishing a prior conviction is
“limited to identifying those facts that were established by virtue
of the conviction itself—that is, facts the jury was necessarily
required to find to render a guilty verdict, or that the defendant
admitted as the factual basis for a guilty plea.” (People v.
Gallardo (2017) 4 Cal.5th 120, 136, fn. omitted (Gallardo).)
There is no evidence in the record to support that Porter
admitted the facts alleged in the presentence investigation report
as the basis of his prior guilty plea. Moreover, the record
indicates that the trial court relied solely on the California and
Michigan statutes in reaching its determination that Porter’s
Michigan carjacking was a serious felony and strike. Thus, we
reject respondent’s contention that Porter’s failure to raise an
objection to the presentence investigation report below results in
forfeiture and permits this court to find sufficient evidence of a
prior serious felony based on the facts alleged in that report. We
reverse the trial court’s true findings on the prior serious felony
allegations and remand to allow the court to assess, in a manner
permissible under Gallardo, whether Porter’s guilty plea in
Michigan encompassed an admission of facts supporting the
finding of a prior strike.
The judgment is otherwise affirmed.
BACKGROUND
In September 2019, Porter and his girlfriend, I.B., broke up
after dating off and on for roughly six months. On September 25,
2019, I.B.’s daughter, V.B., was home alone at the apartment she
and I.B. shared. I.B. had instructed V.B. not to let Porter into
the apartment. When Porter knocked on the apartment door,
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V.B. told him he was not allowed in. Porter then entered through
the front window. V.B. told him to leave and tried to push him
out, but Porter pushed her back and V.B. fell to the floor. Porter
proceeded to sit on top of V.B. and punched her in the legs. V.B.
managed to get out from under Porter and tried to run away from
him, ultimately ending up in her mother’s bedroom. Porter began
hitting V.B. again, and she moved to the bed, where Porter began
trying to pull her pants off. V.B. begged Porter “don’t do this”
and tried to hold her pants up. During this struggle, Porter made
sexual comments to V.B. and put his hand down the back of her
pants. Porter ultimately stopped and told V.B. not to tell
anybody what happened. V.B. escaped from the apartment and
called the police. After attempting to flee, Porter was arrested.
Following this incident, I.B. received a letter from Porter in
which he asked I.B. to “[h]ave her [V.B.] come to court and say I
didn’t do it.” The letter further stated, “I’m begging you to come
to court and do this or just don’t come to court at all” and asked
I.B. to “bring [her] daughter under [her] control.”
Porter was charged with sexual penetration by use of force
(§ 289, subd. (a)(1)(A); count 1); assault to commit a felony during
the commission of a first degree burglary (§ 220, subd. (b);
count 2); first degree burglary with a person present (§ 459;
count 3); assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4); count 4); fleeing a pursuing peace
officer’s motor vehicle while driving recklessly (Veh. Code,
§ 2800.2; count 5); and two counts of attempting to dissuade a
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witness (§ 136.1, subd. (a)(2); counts 6-7).2 The information also
alleged that Porter had one prior serious felony conviction for
carjacking in Michigan within the meaning of the Three Strikes
law (§§ 667, subds. (b)–(j), 1170.12) and section 667, subdivision
(a)(1).
The trial court granted Porter’s motion to bifurcate the
prior conviction allegations from the trial of the charges. The
trial court dismissed count 1 before trial, and Porter pleaded
guilty to count 5 during trial. The trial court also granted
Porter’s motion for acquittal under section 1118.1 as to the
burglary allegation in count 2 and burglary charge in count 3.
The jury convicted Porter in count 2 of assault to commit a felony
(§ 220, subd. (a)), in count 4 of the lesser included crime of simple
assault (§ 240), and in counts 6 and 7 of attempting to dissuade a
witness (§ 136.1, subd. (a)(2)). At closing argument, the
prosecution had tied counts 6 and 7 to two statements made in
the letter Porter sent I.B.: “First . . . he tried to get [V.B.] to not
cooperate and provide information by telling her to come to court
and lie. . . . [N]umber 2, the other way in which he did this is on
the back page he tries to tell [I.B.] to get [V.B.] under her control
and get [V.B.] not to come to court.”
During the bifurcated court trial on the prior serious felony
conviction allegations, the court admitted into evidence certified
court records from Michigan regarding Porter’s prior conviction
for a carjacking as well as certified Michigan Department of
Corrections records including a fingerprint and photographs, and
2 We refer to the counts as numbered in the information
and abstract of judgment rather than as renumbered for the jury,
as the parties did in their briefs.
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a presentence investigation report containing a description of the
prior offense. The trial court stated that the prosecution had “set
forth to me the elements of the offense vis-à-vis the Michigan
penal code” and found the California and Michigan carjacking
statutes “fulfill the same elements making this a valid strike
prior.” The court held the priors to be true and concluded beyond
a reasonable doubt that the Darrell Porter convicted of carjacking
in Michigan and Porter were one and the same. At sentencing,
the trial court imposed second strike sentences in counts 2, 5, and
6, and also imposed a consecutive five-year term under section
667, subdivision (a), resulting in a total sentence of 22 years four
months.
Porter timely appeals.
DISCUSSION
A. The Record Fails to Support Two Separate
Convictions for Dissuading a Witness
Because the prosecution here tied the violation of section
136.1, subdivision (a)(2) to the contents of Porter’s letter to I.B.,
Porter argues that the jury was required to decide these counts
based only on the letter, which contains only one such violation.
Respondent does not dispute that reversal of one of the two
section 136.1, subdivision (a)(2) convictions is appropriate here.
We agree.
“ ‘In addressing a challenge to the sufficiency of the
evidence supporting a conviction, the reviewing court must
examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Ochoa
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(2009) 179 Cal.App.4th 650, 656-657.) We determine “ ‘whether
from the evidence, including all reasonable inferences to be
drawn therefrom, there is any substantial evidence of the
existence of each element of the offense charged.’ ” (People v.
Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)
Where the prosecution has tied a specific count to specific
criminal acts in opening or closing argument, thus removing the
need for a unanimity instruction, and “the defendant raises a
substantial evidence challenge, our review is limited to whether
there is sufficient evidence to support a conviction based
exclusively on the act elected by the prosecution.” (People v.
Brown (2017) 11 Cal.App.5th 332, 341-342.)
Porter was charged with two counts of attempting to
dissuade a witness in violation of section 136.1, subdivision (a)(2).
The subdivision provides that any person who “[k]nowingly and
maliciously attempts to prevent or dissuade any witness or victim
from attending or giving testimony at any trial, proceeding, or
inquiry authorized by law” shall be punished by imprisonment in
a county jail for not more than one year or in the state prison.
(§ 136.1, subd. (a)(2).) During closing argument, the prosecutor
asserted that Porter committed these crimes through two
requests made in his letter to I.B.: (1) that I.B. get V.B. “to come
to court and lie”; and (2) that I.B. “get V[.B.] under her control
and get V[.B.] not to come to court.”
Porter argues that the first statement on which the
prosecutor relied is insufficient to support a conviction under
section 136.1, subdivision (a)(2) because asking V.B. to come to
court and lie does not constitute an attempt to prevent or
dissuade her from attending or giving testimony. Porter relies on
People v. Fernandez (2003) 106 Cal.App.4th 943, in which the
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defendant was convicted under section 136.1, subdivision (b)(1)
after he asked his friend not to tell the truth about the defendant
cashing the friend’s disability check without his permission.
(Fernandez, at p. 946.) Although the defendant conceded that
“his conduct was a violation of section 137, subdivision (c),” he
argued that the subdivision under which he was charged,
subdivision (b)(1), “does not purport to punish attempts to
influence or prevent a witness’s testimony, as he did in this case.”
(Id. at p. 947.) Rather, subdivision (b)(1) concerns attempts to
prevent the making of a report of victimization to certain law
enforcement officials. The court agreed, finding that “[s]ection
136.1, subdivision (b)(1) is not a catchall provision designed to
punish efforts to improperly influence a witness,” but is instead
“one of several contained within part I, title 7, chapter 6 of the
Penal Code (§§ 132-140), which establishes a detailed and
comprehensive statutory scheme for penalizing the falsification of
evidence and efforts to bribe, influence, intimidate or threaten
witnesses.” (Id. at p. 948.) The court held that to uphold the
defendant’s conviction under section 136.1, subdivision (b)(1)
“would disrupt the Legislature’s carefully calibrated system of
punishment which calls for his conduct to be treated as a
misdemeanor under section 137, subdivision (c).” (Id. at p. 951.)
In this case, even if other evidence presented to the jury
might have supported a second conviction under section 136.1,
subdivision (a)(2),3 and the portion of the letter asking V.B. to
come to court and lie could have supported a conviction under
3 For example, Porter concedes that V.B.’s testimony that
he told her at the time of the incident not to tell anyone could
provide another factual basis for the charge.
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section 137, subdivision (c), we are required to determine
whether there is any substantial evidence of the existence of each
element of the offense charged based exclusively on the acts
elected by the prosecution. (People v. Crittenden, supra, 9 Cal.4th
at p. 139, fn. 13; People v. Brown, supra, 11 Cal.App.5th at pp.
341-342.) Here, only the second of the two statements relied
upon by the prosecution sought to prevent V.B. from coming to
court to testify. Accordingly, there is insufficient evidence to
support two separate convictions under section 136.1, subdivision
(a)(2). We reverse Porter’s first conviction under count 6 and
remand for resentencing.4
B. The Evidence Is Insufficient to Support the True
Findings on the Prior Serious Felony Allegations
To qualify as a strike, a prior conviction must be either a
violent felony listed in section 667.5, subdivision (c) or a serious
felony listed in section 1192.7, subdivision (c). (§§ 667, subd. (d)
& 1170.12, subd. (b).) “A prior conviction of a particular felony
shall include a conviction in another jurisdiction for an offense
that includes all of the elements of the particular felony as
defined under California law . . . .” (§ 667.5, subd. (f).) The
People are required to prove all elements of a sentence
enhancement beyond a reasonable doubt. (People v. Miles (2008)
43 Cal.4th 1074, 1082.)
4 Because we find that we must reverse one of Porter’s
convictions under section 136.1, subdivision (a)(2) on the first
ground urged by Porter, we need not reach his further claim (also
undisputed by respondent) that reversal is required because the
jury instruction as to one of the counts (count 6) erroneously
listed the elements of section 136.1, subdivisions (b)(1) and (b)(2).
9
“On review, we examine the record in the light most
favorable to the judgment to ascertain whether it is supported by
substantial evidence. In other words, we determine whether a
rational trier of fact could have found that the prosecution
sustained its burden of proving the elements of the sentence
enhancement beyond a reasonable doubt.” (People v. Delgado
(2008) 43 Cal.4th 1059, 1067.) If the prior offense is one that
could be committed in multiple ways and the record of conviction
does not disclose how the offense was committed, we “presume
the conviction was for the least serious form of the offense.”
(People v. Miles, supra, 43 Cal.4th at p. 1083.)
Our high court has limited the facts in the record on which
a court may rely in determining whether the prior offense
qualifies as a serious felony. In Gallardo, supra, 4 Cal.5th at
page 136, the California Supreme Court examined the extent to
which the United States Constitution’s Sixth Amendment right to
a jury limits a court’s ability to add extra punishment based upon
its own factfinding. In a past case, defendant Gallardo had
“entered a plea of guilty to assault under a statute that, at the
time, could be violated by committing assault either with a
‘deadly weapon’ or ‘by any means of force likely to produce great
bodily injury.’ ” (Ibid.) If the defendant used a deadly weapon,
the assault constituted a strike under a “Three Strikes” law,
which would increase her prison term. (Id. at p. 125.) However,
the defendant had not specified that she used a deadly weapon
when she entered her plea. (Id. at p. 136.) The trial court
undertook a review of a preliminary hearing transcript in which
the assault victim testified that the defendant had used a deadly
weapon during the assault, and based upon the transcript, the
court increased the defendant’s sentence. (Id. at p. 123.) The
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California Supreme Court found that “[a] sentencing court
reviewing that preliminary transcript has no way of knowing
whether a jury would have credited the victim’s testimony had
the case gone to trial.” (Id. at p. 137.) The defendant’s jury trial
right was therefore violated when the court added extra
punishment based upon its review of the preliminary hearing
transcript. (Id. at p. 135.)
The California Supreme Court overruled its prior
authorization allowing “trial courts to make findings about the
conduct that ‘realistically’ gave rise to a defendant’s prior
conviction.” (Gallardo, supra, 4 Cal.5th at p. 134.) Thus, in
considering whether to impose an enhancement based on a prior
qualifying conviction, the “court’s role is, rather, limited to
identifying those facts that were established by virtue of the
conviction itself—that is, facts the jury was necessarily required
to find to render a guilty verdict, or that the defendant admitted
as the factual basis for a guilty plea.” (Id. at p. 136, fn. omitted.)
When a court engages in fact-finding beyond these limits, it
violates the defendant’s Sixth Amendment right to a jury trial.
(See id. at pp. 133-137.)
Here, the amended information alleged that Porter had one
prior felony conviction, a carjacking committed in Michigan in
2008. Porter argues, and respondent agrees, that the elements of
carjacking in California differ from the elements of carjacking in
Michigan. Under California law, carjacking is defined as “the
felonious taking of a motor vehicle in the possession of another,
from his or her person or immediate presence, or from the person
or immediate presence of a passenger of the motor vehicle,
against his or her will and with the intent to either permanently
or temporarily deprive the person in possession of the motor
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vehicle of his or her possession, accomplished by means of force or
fear.” (§ 215, subd. (a), italics added.) Under Michigan law
“[p]resence is no longer an element of the offense” of carjacking.
(People v. Jones (Mich. Ct. App. 2012) 823 N.W.2d 312, 317.)5
Accordingly, the trial court’s conclusion the crimes of carjacking
under California law and Michigan law consist of the “same
elements” was error. Because the Michigan statute could be
violated in a way that does not qualify as carjacking under
California law, there is insufficient evidence of a prior serious
felony conviction based on the statutes. (People v. Delgado,
supra, 43 Cal.4th at p. 1066.) However, this determination does
not end the inquiry.
Respondent argues that the presentence investigation
report in an exhibit submitted to the trial court, to which there
was no objection, demonstrated that the carjacking took place in
the immediate presence of the victims and thus established that
the elements of a carjacking under California law were satisfied.
Porter counters that there is no evidence in the record to support
5 Michigan’s statute provides:
“(1) A person who in the course of committing a larceny of a
motor vehicle uses force or violence or the threat of force or
violence, or who puts in fear any operator, passenger, or person in
lawful possession of the motor vehicle, or any person lawfully
attempting to recover the motor vehicle, is guilty of
carjacking . . . .
“(2) As used in this section, ‘in the course of committing a
larceny of a motor vehicle’ includes acts that occur in an attempt
to commit the larceny, or during commission of the larceny, or in
flight or attempted flight after the commission of the larceny, or
in an attempt to retain possession of the motor vehicle.” (Mich.
Comp. Laws Ann., § 750.529a (2004).)
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that he adopted the allegations in the report as the factual basis
for his guilty plea. Respondent does not argue otherwise, and we
find no evidence in the record to support that Porter did so.
Thus, the trial court would have strayed beyond its permitted
function of “identifying those facts that were established by
virtue of the conviction itself” had it relied on the allegations in
the presentence investigation report in finding the prior serious
felony allegations to be true. (Gallardo, supra, 4 Cal.5th at
p. 136.) It did not, however. The record indicates that the trial
court made its true findings based solely on the California and
Michigan statutes, not on the report.
Nevertheless, respondent contends that Porter forfeited
any objection to the presentence investigation report he might
have by failing to raise it below. “ ‘[T]he purpose of the forfeiture
rule ‘is to encourage parties to bring errors to the attention of the
trial court, so that they may be corrected.’ ” (Unzueta v. Akopyan
(2019) 42 Cal.App.5th 199, 215; see People v. Sandoval (2007) 41
Cal.4th 825, 837, fn. 4 [“[a]n objection in the trial court is not
required if it would have been futile”].) Had Porter raised a Sixth
Amendment challenge, it would no doubt have been futile
because there was no error on that basis below. In other words,
because the trial based the enhancement solely on its perception
that the crimes of carjacking in California and Michigan had the
same elements, it was not making the error of relying upon the
investigation report, and thus, there was no reason to raise a
constitutional challenge on that basis. We therefore reject
respondent’s suggestion that, because Porter did not raise an
objection before the trial court, this court may do what the trial
court properly did not and rely on the report for factfinding
purposes proscribed by Gallardo, supra, 4 Cal.5th 120.
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We conclude that there is insufficient evidence of a prior
serious felony conviction. Accordingly, we reverse and remand
for retrial on the prior conviction allegations. (People v. Scott
(2000) 85 Cal.App.4th 905, 914-915.)
DISPOSITION
Porter’s conviction in count 6 is reversed and the matter
remanded for resentencing. The true findings on the prior
serious felony conviction allegations are reversed. We remand to
permit respondent to demonstrate to the trial court, based on a
review of the record of the prior plea proceedings in a manner
permissible under People v. Gallardo, supra, 4 Cal.5th 120,
whether Porter’s guilty plea encompassed a relevant admission
about the nature of the crime. The judgment is otherwise
affirmed.
NOT TO BE PUBLISHED
MORI, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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