Filed 1/21/20 P. v. Dalton CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN DALE DALTON,

Defendant and Appellant.

C080988

(Super. Ct. No. CM042815)

A jury found defendant Steven Dale Dalton guilty of dissuading a witness with the use of force or the threat of force and interfering with a wireless communication device. He was sentenced as a third striker with five prior prison commitments to an aggregate term of 30 years to life. On appeal, defendant contends insufficient evidence supports both convictions. And in a supplemental brief, he contends the five prior prison term enhancements should be dismissed in light of Senate Bill No. 136, which eliminates the one-year prior prison term enhancement for most felonies.

We will strike the prior prison term enhancements and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The charges arose from an altercation between defendant and his girlfriend. During the altercation, the girlfriend called defendant’s sister. At trial, evidence was presented in the form of testimony from a neighbor who heard and saw some of the altercation, recordings of defendant’s sister’s calls to 911, statements to an investigating officer, and testimony from a responding officer. The girlfriend did not testify.

The Charges

Defendant was charged with dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1), Count 1) and interference with a wireless communication devise (§ 591.5, Count 2). Additionally, it was alleged that defendant had sustained two prior strike convictions (§§ 667, subd. (b)-(j); 1170.12) and five prior prison commitments (§ 667.5, subd. (b)).

The Neighbor’s Testimony

The neighbor testified that the relationship between the girlfriend and defendant was “very rough.” The day of the incident, he saw the two fighting and heard the girlfriend screaming for help. The fighting was “pretty heated” and sounded physical and verbal. Although a tall fence blocked his view, at one point he saw pushing and chasing.

Defendant’s Sister’s 911 Call

Defendant’s sister received a call from defendant’s girlfriend immediately before the sister called 911. The jury heard the recorded 911 call. In the call, the sister told a 911 operator: “[defendant] grabbed the phone from [the girlfriend] . . . I said, ‘Well, you leave her alone or I’m gonna call the cops.’ And he said if I call the cops he’s gonna kill her and then come kill me. [¶] And then the phone went down and I heard her screamin’ ”

The sister added: “[I] just got a couple words from [the girlfriend] and then [defendant] took the phone. And he — he told me if the cops show up there that, um, he would have — because it’s kind of a long driveway, he said he would have her killed before anybody got to the door. And then he said that’s [sic] he’s going to go for me.”

Defendant’s Sister’s Interview with an Investigating Officer

After defendant had been arrested, the sister spoke with an officer on the phone. During the phone interview, she said: “[I] told [the girlfriend] to call the cops. And, uh, she said, ‘Yeah, uh,’ and then my brother got the phone and he must a heard me tell her to call the cops ‘cause he said, if I call the cops that he’s gonna kill her and me both.”

When the officer asked what happened next, the sister said, “then that’s it. . . . [H]e threw the phone or whatever and I called you guys just as quick as I could.”

The officer asked if the girlfriend had asked her to call the cops. The sister said she did, explaining that as defendant was taking the phone from the girlfriend, the girlfriend told her to call the cops. The sister said that she then told defendant, “I’m gonna call the cops ‘cause you’re tormentin’ her. You got her scared. I’m not — ya know. I’m sendin’ the cops over there because you’re not gonna keep doin’ that to her.”

She added that the girlfriend, “may have got to use the phone by saying she was callin’ me to let me know she wasn’t gonna be there [at a veterinary appointment for their dogs]. Because . . . he said, ‘You lyin’ bitch you ain’t meetin’ her nowhere.” And then that’s when he took the phone.’ “I think that’s why she was able to call me.”

When the officer told the sister that the girlfriend’s phone was broken, the sister responded, “He broke it.”

The Responding Officer’s Testimony

An officer, who had been dispatched to the scene, testified that defendant had refused to release his girlfriend from the house or to come out of the house. During the ensuing standoff, the officer found an overturned purse in the driveway. Next to it was a smartphone. The phone’s screen was severely cracked, with the battery and back part of the phone separated. The phone appeared to have been thrown to the ground. The girlfriend’s name was written on the back of the phone.

Ultimately, a SWAT team was called in, and defendant and his girlfriend were brought out. Once arrested, defendant told officers he was a parole violator, was really high, and did not want to go to jail.

Section 1118.1 Motion for Acquittal

Prior to the jury’s deliberations, defense counsel moved to dismiss Count 1, dissuading a witness, arguing there was a lack of evidence that the girlfriend and sister were victims or witnesses to a crime. The prosecution asserted that the sister and victim were witnesses and the evidence showed defendant tried to discourage them from seeking his arrest on a parole violation.

The trial court denied the motion, ruling that there was sufficient evidence under the prosecution’s theory relative to witnesses, and further, “as it relates to crime victim,” the neighbor’s testimony of pushing and the girlfriend calling for help would arguably be “some sort of 243 [battery].”

Verdicts and Sentencing

The jury found defendant guilty of dissuading a witness (§ 136.1) and found that he used force or the threat of force (§ 136.1(c)(1)). It also found him guilty of interfering with a wireless communication device (§ 591.5). In a bifurcated proceeding, the trial court found defendant had two prior strike convictions and five prior prison commitments (burglary, two reckless driving convictions, assault with a deadly weapon, and a conviction involving battery and possessing a weapon while incarcerated).

After declining to strike defendant’s two prior strikes, the court imposed an indeterminate term of 25 years to life, and five years consecutive for the five prior prison term enhancements.

DISCUSSION

I. Substantial Evidence

A. Defendant’s Contentions and Standard of Review

On appeal defendant contends substantial evidence did not support the guilty findings for dissuading a witness and for interfering with a wireless communication device. We disagree.

Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is “reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) We draw all inferences from the evidence that supports the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) “ ‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri).)

B. Substantial Evidence – Dissuading a Witness

Defendant argues that “there is no evidence as to what crime, if any, he was supposedly trying to dissuade [his girlfriend and sister] from reporting” and thus the evidence was insufficient to support the verdict on this count. We disagree.

As to this count, the trial court instructed the jury: “[T]he People must prove that: One, the defendant maliciously tried to prevent or discourage [the girlfriend] and/or [defendant’s sister] from arresting, causing, or seeking the arrest of, anyone in connection with a crime; two, [the girlfriend] and/or [defendant’s sister] were witnesses; and three, the defendant knew he was trying to prevent or discourage [the girlfriend] and/or [defendant’s sister] from causing his arrest and intended to do so.” (Italics added.) “As used here, witness means someone or a person the defendant reasonably believes to be someone who knows about the existence or nonexistence of facts relating to a crime.”

As the trial court recognized when it denied defendant’s section 1118.1 motion, the record contains substantial evidence from which the jury could conclude defendant dissuaded a witness from seeking defendant’s arrest for battery (or an attempted battery). The neighbor heard a physical and verbal fight and saw pushing and chasing. The neighbor also heard the girlfriend screaming for help. The girlfriend, in turn, told defendant’s sister to call 911.

The record also contains substantial evidence from which the jury could conclude defendant dissuaded a witness from seeking defendant’s arrest for making criminal threats. The sister heard over the phone defendant make criminal threats toward the girlfriend. The evidence established that defendant took his girlfriend’s phone and said he would kill the girlfriend and the sister if the police were called — explaining that the long driveway would give him time to kill the girlfriend before anyone could reach the door. He made those threats immediately after he heard his sister and girlfriend tell each other to call the police, and after his sister told him, “I’m sendin’ the cops over there because you’re not gonna keep doin’ that to her.”

From this evidence, a reasonable jury could conclude the girlfriend was a victim of criminal threats, battery and/or attempted battery, and defendant attempted to prevent his arrest for these offenses by taking her phone and threatening to kill her and his sister. We cannot conclude ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (Penunuri, supra, 5 Cal.5th at p. 142.)

C. Substantial Evidence – Interfering with a Wireless Communication Device

Defendant next contends insufficient evidence supported the guilty verdict on Count 2, interfering with a wireless communication device. He argues the only evidence supporting the finding that he broke the phone was the speculative statement of his sister, who was not at the scene and never saw or heard the phone break. We disagree.

The evidence supports a finding that before the phone was found broken, defendant had taken the phone from his girlfriend. When it was found, it was severely cracked, the battery and back of the phone were separated, and the phone appeared to have been thrown to the ground. And the phone was found in the driveway while officers were attempting to get defendant to come out of the house.

From these facts, a jury could reasonably conclude defendant broke the phone. Thus, substantial evidence supports the jury’s verdict.

II. Senate Bill No. 136

Defendant finally contends reversal is required following the enactment of Senate Bill No. 136 (Stats. 2019, ch. 590, § 1). The bill eliminates the section 667.5 one-year prior prison term enhancement for all convictions except sexually violent offenses. None of defendant’s prior prison commitments were for sexually violent offenses. Defendant maintains he is entitled to the benefit of Senate Bill No. 136. The People agree and so do we. (In re Estrada (1965) 63 Cal.2d 740, 7485 [for a non-final conviction, “where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”].)

We will strike the five one-year prior prison term enhancements.

DISPOSITION

The judgment is modified to strike the five one-year prior prison term enhancements imposed under Penal Code section 667.5. The trial court shall prepare an amended abstract of judgment deleting the section 667.5, subdivision (b), prior prison term enhancements and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

/s/

MURRAY, J.

We concur:

/s/

MAURO, Acting P. J.

/s/

DUARTE, J.