Filed 6/5/15 P. v. Martinez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060548

v.                                                                       (Super.Ct.No. RIF1205909)

MICHAEL MARTINEZ,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed with directions.

         Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                      INTRODUCTION

        Defendant Michael Martinez appeals from judgment entered following jury

convictions for attempted murder (Pen. Code, §§ 664 and 187;1 counts 1 and 2), robbery

(§ 211; count 3), assault with a deadly weapon (§ 245, subd. (a)(1); counts 4 and 5)),

making criminal threats (§ 422; counts 6), and dissuading a witness from testifying at

trial (§ 136.1, subd. (a)(1); count 7). The jury also found true allegations that defendant

inflicted great bodily injury (GBI) as to counts 1, 2, 4 and 5 (§ 12022.7), and used a

deadly weapon as to counts 1 through 5 (§ 12022, subd. (b)). In addition, defendant

stipulated he had two strike priors and two felony priors (§§ 667.5, subd. (b), 667, subds.

(a), (c), (e)(2)(A), and 1170.12, subd. (c)(2)(A)). The trial court sentenced defendant to a

determinate sentence of 18 years and a consecutive indeterminate sentence of 75 years to

life.

        Defendant contends there was insufficient evidence to support the jury’s finding of

premeditation and deliberation as to his convictions for attempted murder (counts 1 and

2). Defendant also contends there was insufficient evidence to support his count 7

conviction, incorrectly alleged as dissuading a witness from testifying at trial in violation

of section 136.1, subdivision (a)(1). This contention arises from the prosecution’s

careless pleading of count 7, and both parties’ and the court’s inartful in not noticing and

correcting the pleading error, which was carried over to the count 7 verdict. Because this


        1   Unless otherwise noted, all statutory references are to the Penal Code.

                                               2
error was harmless, we reject both of defendant’s contentions and affirm the judgment, as

modified, to correct the clerical error in misdesignating the statute violated in count 7.

The judgment and abstract of judgment should be corrected to show that defendant

violated section 136.1, subdivision (b)(1), dissuading a witness from reporting a crime.

                                              II

                                           FACTS

       On August 20, 2012, defendant was involved in two separate incidents occurring

at an AM/PM store in Corona. The first incident occurred in the early morning, around

1:00 a.m. The second incident occurred the following evening on August 20, 2012, at

approximately 11:00 p.m.

The 1:00 a.m. Incident

       On August 20, 2012, at approximately 1:00 a.m., Jason Sewell, Cody Marisnick,

and Katie Keyzers stopped at an AM/PM to get gas. Defendant approached the open

window on the front passenger side of Sewell’s vehicle. Marisnick was sitting in the

front passenger’s seat and Keyzers was sitting behind him. Defendant accused Sewell

and Marisnick of giving him dirty looks. Sewell said they were not giving him dirty

looks. Keyzers testified she heard Marisnick calmly say something like, “‘It’s not like

that, but if you want it to be, we can handle [it].’” Defendant said okay and then charged

toward Sewell’s vehicle, reached into the car through the front passenger window, and

punched and stabbed Marisnick about five times in the face and arm with a small Swiss

Army knife.



                                              3
       When Keyzers slightly opened the back passenger door, defendant asked Keyzers

if she wanted some of the action, too, and swung the door open. Defendant looked at

Keyzers and then stepped back and shut the door. When Sewell attempted to leave the

car, defendant said, “‘You better get back in the car, homie. I’m going to jack your

ride.’” Sewell drove away with Marisnick and Keyzers, and called 911 around 30

seconds later.

       After Sewell, Marisnick, and Keyzers left, defendant entered the AM/PM store

and stole some beer. Defendant exclaimed, “‘I killed the son of a bitch.’” The store

clerk, Mario Mendoza, asked defendant who he killed. Defendant replied, “Fuck you.”

Mendoza, who was unarmed, followed defendant outside and asked again who defendant

had killed. Defendant laughed and stabbed Mendoza at least five times in the head and

twice in the shoulder. The knife blade became embedded in Mendoza’s head. After

defendant left, a customer entered the store and called the police. Mendoza underwent

neck surgery and hospitalization for his head injuries. About three months later,

Mendoza suffered two cerebral hemorrhages or strokes, requiring him to walk with a

cane thereafter. Mendoza identified defendant as the perpetrator when shown

photographs at the hospital and identified defendant at trial.

       Deputy Carlos Vasques responded to a dispatch call at approximately 1:17 a.m. on

August 20, 2012. Vasques contacted Mendoza and took his statement. Vasques found

defendant’s knife behind the store counter. He also obtained the store surveillance video

of the incident, which was played for the jury.



                                              4
       Defendant testified he had no recollection of going to the AM/PM store or the

attacks on Marisnick and Mendoza, because before the incident, he had been drinking

heavily at a party. During cross-examination, defendant claimed he attacked Marisnick

in self-defense. He grabbed Marisnick’s knife and stabbed him because Marisnick tried

to stab defendant. Defendant said he also stabbed Mendoza because Mendoza came after

him aggressively and was yelling at him. Defendant stated during cross-examination that

he was regaining memory of the incident and he remembered he had tried to kill

somebody by stabbing him.

The 11:00 p.m. Incident

       Defendant returned to the AM/PM store that evening on August 20, 2012, at

approximately 11:00 p.m. He was accompanied by his brother and a couple of other

companions. Two of defendant’s companions entered the store and stole beer from the

store. The store clerk, Rafael Aguirre, told the two people to stop as they were leaving

with the beer. They ignored Aguirre. Defendant entered the store and warned Aguirre to

leave his friends alone and not to call 911. Defendant told Aguirre he and his

companions were all from the same gang and threatened to kill Aguirre. The surveillance

video recorded the following conversation at the store between defendant and Aguirre:

       “MARTINEZ: Okay, look I just told you don’t fuckin *** shut the fuck up

mother fucker

       “AGUIRRE: ***

       “MARTINEZ: Hey, I’ll go down there and fuck you up alright.

       “AGUIRRE: You want to stay here too when the police coming

                                            5
       “MARTINEZ: *** fool.”

       Police Officers Ambriz and Dobson arrived at the scene and arrested defendant.

       Defendant testified he told Aguirre, “[i]f you don’t shut up, I’m going to hit you,”

because Aguirre was “talking crap” to him. Defendant said he threatened to “fuck him

up” when Aguirre said he was calling the police to report that defendant’s brother had

stolen beer. Defendant admitted being on parole for assault with a deadly weapon, and

having additional prior convictions for vandalism and for making criminal threats for the

benefit of a criminal street gang. Defendant acknowledged he had been in a gang for 10

years and most of his tattoos were gang related. Defendant denied being in a gang at the

time of trial. He also denied warning Aguirre he was in a gang or participating in a plot

to steal beer.

                                             III

   SUFFICIENCY OF EVIDENCE OF PREMEDITATION AND DELIBERATION

       Defendant contends there was insufficient evidence to support his convictions for

attempted first degree murder of Marisnick and Mendoza (counts 1 and 2). He argues the

prosecution did not present sufficient evidence of premeditation and deliberation.

       “In assessing the sufficiency of the evidence, we review the entire record in the

light most favorable to the judgment to determine whether it discloses 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. [Citations.] Reversal on this ground is

unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient



                                              6
substantial evidence to support [the conviction].’ [Citations.]” (People v. Bolin (1998)

18 Cal.4th 297, 331.)

       Murder is an unlawful killing committed with malice aforethought. (§ 187, subd.

(a); People v. Elmore (2014) 59 Cal.4th 121, 132.) Murder is of the first degree when it

is committed in a willful, deliberate and premeditated fashion. (§ 189; Elmore, at p. 133;

People v. Beltran (2013) 56 Cal.4th 935, 942.) Attempted murder requires the specific

intent to kill and the commission of a direct but ineffectual act toward accomplishing the

killing. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1192; People v. Ervine (2009)

47 Cal.4th 745, 785.)

       Premeditation and deliberation require more than a showing of intent to kill.

(People v. Halvorsen (2007) 42 Cal.4th 379, 419; People v. Concha (2010) 182

Cal.App.4th 1072, 1083-1084.) An intentional killing is premeditated and deliberate if it

occurred as the result of preexisting thought and reflection, rather than as the product of

an unconsidered or rash impulse. (People v. Burney (2009) 47 Cal.4th 203, 235; People

v. Jurado (2006) 38 Cal.4th 72, 118.) “Premeditated” means considered beforehand;

“deliberate” refers to careful weighing of considerations in forming a course of action.

(Jurado, at p. 118; People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “The process of

premeditation and deliberation does not require any extended period of time.” (People v.

Mayfield (1997) 14 Cal.4th 668, 767; People v. Solomon (2010) 49 Cal.4th 792, 813.)

       A reviewing court considers three types of evidence when determining whether a

finding of premeditation and deliberation is adequately supported: planning activity by

the defendant, motive, and the manner of killing. (People v. Gonzalez (2012) 54 Cal.4th

                                              7
643, 663-664; People v. Burney, supra, 47 Cal.4th at p. 235; People v. Romero (2008) 44

Cal.4th 386, 401; People v. Anderson (1968) 70 Cal.2d 15, 26-27.) These so-called

“Anderson ” factors are not the exclusive means to establish premeditation, and need not

be present in any particular combination, or at all, to establish the evidence was

sufficient. (People v. Streeter (2012) 54 Cal.4th 205, 242; Gonzalez, at p. 663; Burney, at

p. 235.) “A first degree murder conviction will be upheld when there is extremely strong

evidence of planning, or when there is evidence of motive with evidence of either

planning or manner.” (Romero, at p. 401.)

A. Attempted Murder of Mendoza

       Defendant argues there was no evidence defendant planned the attack on the store

clerk, Mendoza (count 1). He asserts there was no evidence defendant “was engaged in

activity directed toward, and explicable as intended to result in” the attempted murder of

Mendoza. (People v. Anderson, supra, 70 Cal.2d at pp. 26-27.) Defendant also argues

there was no evidence of motive to kill, since defendant and Mendoza were complete

strangers. In addition, the manner of the assault was not so particular and exacting to

support a finding of premeditation and deliberation.

       We conclude there was substantial evidence of motive, and the manner of the

assault was sufficiently particular and exacting to support a finding of premeditation and

deliberation. Defendant attacked Mendoza after Mendoza had just witnessed defendant

stealing beer and persistently asked defendant who he had just attacked. It could be

reasonably inferred defendant was angry at Mendoza for repeatedly asking for the name



                                             8
of the person defendant had said he killed and wanted to avoid liability for the theft and

the attack.

       The manner of the attack, in which defendant repeatedly stabbed Mendoza five

times in the head and shoulder, also supported a finding of premeditation and

deliberation. (People v. Hovey (1988) 44 Cal.3d 543, 556 [repeated stabbings “‘supports

the inference of a calculated design to ensure death, rather than an unconsidered

“explosion” of violence.’”].) Defendant’s laughter, in response to Mendoza repeatedly

asking defendant who he had killed, demonstrated that, when he stabbed Mendoza,

leaving the knife blade embedded in Mendoza’s head, defendant acted with cold,

calculated judgment, rather than with unconsidered or rash impulse. Evidence of

defendant’s motive for the attack and the manner in which it was committed was

sufficient to support defendant’s conviction for attempted premeditated and deliberate

murder of Mendoza.

B. Attempted Murder of Marisnick

       Defendant argues as to the stabbing incident involving Marisnick that there was no

evidence of planning activities before defendant attacked Marisnick, or any evidence of

motive for defendant’s attempt to kill Marisnick. Defendant asserts he did not know

Marisnick and had not encountered him before the attack. Defendant describes his

encounter with Marisnick as a random encounter in which Marisnick happened to be in

the wrong place at the wrong time and defendant became upset upon mistakenly

believing Marisnick and Sewell were giving him dirty looks. Defendant also argues the



                                             9
attack on Marisnick was sudden and in a burst of rage, rather than committed in a manner

so particular and exacting, in accordance with a preconceived design.

       We conclude the evidence was more than sufficient to support a finding that

defendant acted with premeditation and deliberation when he assaulted and stabbed

Marisnick. Evidence of defendant’s motive to kill Marisnick includes testimony that,

before assaulting Marisnick, defendant accused him of giving defendant dirty looks, and,

according to Keyzers, Marisnick responded, “it’s not like that, but if you want it to be, we

can handle [it].” Defendant could have walked away but, instead, said “okay” and then

charged toward Sewell’s vehicle, reaching into the car through the front passenger

window, and punching and stabbing Marisnick four or five times in the face and arm with

a small Swiss Army knife.

       Defendant’s conduct reflects that he felt disrespected by Marisnick not submitting

to defendant’s confrontational acts and was motivated to establish his dominance over

Marisnick by attacking him. His acts of attacking Marisnick, who was sitting inside the

car unarmed, and thereafter threatening to attack Keyzers and threatening Sewell with

carjacking Sewell’s car, show that during the incident involving Marisnick, defendant

acted deliberately, with cold, calculated judgment, rather than with unconsidered or rash

impulse. This is further apparent from defendant’s conduct after Sewell, Marisnick, and

Keyzers left, and defendant entered the AM/PM store, exclaiming to Mendoza, “I killed

the son of a bitch.” Defendant showed pride in committing a cold-hearted attack on

Marisnick.



                                            10
       In addition, as with defendant’s multiple stabbings of Mendoza, the manner of

defendant’s attack of Marisnick, in which defendant repeatedly stabbed him in the head

four or five times, also supports a finding of premeditation and deliberation. (People v.

Hovey, supra, 44 Cal.3d at p. 556.) The repeated stabbings support an “‘inference of a

calculated design to ensure death, rather than an unconsidered “explosion” of violence.’”

(Ibid.) Although little time elapsed between when defendant first encountered Marisnick

and defendant attacked him, the process of premeditation and deliberation can occur

within a brief period of time. “‘The true test is not the duration of time as much as it is

the extent of the reflection. Thoughts may follow each other with great rapidity and cold,

calculated judgment may be arrived at quickly . . . .’ [Citations.]” (People v. Mayfield,

supra, 14 Cal.4th at p. 767; People v. Solomon, supra, 49 Cal.4th at p. 813.) Substantial

evidence supports a finding that this occurred in the instant case. Before attacking

Marisnick, defendant reflected on Marisnick’s acts, which defendant construed as

challenging him by looks. We therefore conclude the evidence of motive and the manner

in which defendant attacked and repeatedly stabbed Marisnick was sufficient to support

the jury’s finding defendant committed attempted premeditated and deliberate murder.

                                             IV

             SUFFICIENCY OF EVIDENCE OF COUNT 7 CONVICTION

       Defendant contends there was insufficient evidence to support his count 7

conviction for dissuading a witness from giving testimony in a trial (§ 136.1, subd.




                                             11
(a)(1)).2 Defendant asserts his conviction should be reversed because his conduct did not

fall within the statute charged in count 7.

A. Factual and Procedural Background

        Count 7 of the second amended felony complaint (complaint) and information

allege that defendant violated section 136.1(a)(1) by “wilfully, unlawfully, knowingly

and maliciously prevent[ing] and dissuad[ing] a witness, to wit, RAFAEL AGUIRRE,

from attending and giving testimony at a trial, proceeding and inquiry authorized by

law.”

        During the trial, defendant testified he threatened Aguirre when defendant became

aware Aguirre was calling the police and reporting the beer theft. Defendant also

testified that after his friends stole beer, he told Aguirre, “If you don’t shut up, I’m going

to hit you.” The surveillance video of the incident shows that right after the beer theft,

Aguirre and his coworkers discussed calling 911. Aguirre testified that defendant kept

telling Aguirre to leave him alone and that his companions, who stole the beer, were his

friends and they were all from the same gang. Defendant told Aguirre that defendant

could come around the back and kill Aguirre. At the time of that threat, Aguirre’s

coworker was in the process of calling 911.

        The prosecution argued during closing argument regarding count 7: “And witness

intimidation. . . . [D]efendant tried to prevent or discourage Aguirre from reporting that

he was a victim to a crime. And remember, Mr. Aguirre said, we had a conversation with

        2For ease of reference, we refer to section 136.1, subdivision (a)(1), as
“136.1(a)(1)” and refer to section 136.1, subdivision (b)(1), as “136.1(b)(1).”

                                              12
my colleague about calling the police. The defendant was in the immediate vicinity.

You could see Mr. Aguirre hand the phone over. And Mr. Aguirre says that’s when the

defendant said, leave them alone. [¶] Mr. Aguirre, what did you understand that to

mean? He said, those guys that just took the beer, the guys that were with him, leave

them alone, or I’m going to come and fuck you up. I mean, that’s kind of the summary of

what was said. Does it matter that he wasn’t successful? Doesn’t matter that Mr. Aguirre

stood his ground and did call and came in here and did testify as a witness. It just matters

that the defendant did and said those things.”

       Defense counsel described count 7 during closing argument as an “intimidating a

witness” charge. Defense counsel told the jury that in order to convict defendant of the

count 7 charge, the jury needed “to show that [defendant] was trying to prevent Mr.

Aguirre from reporting a crime.”

       The court instructed the jury on count 7 at follows: “The defendant is charged in

Count 7 with intimidating a witness, in violation of Penal Code Section 136.1. To prove

that the defendant is guilty of this crime, the People must prove that: [¶] One, the

defendant tried to prevent or discourage Rafael Aguirre from making a report that he was

a victim of a crime to law enforcement. A person is a victim if there is an – 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 victim. It is not a defense that no one was actually, physically injured

or otherwise intimidated.”



                                             13
       The jury entered a verdict stating that the jury found defendant “guilty of a

violation of section 136.1, subdivision (a), subsection (1), of the Penal Code,

PREVENT/DISSUADE RAFAEL AGUIRRE FROM TESTIMONY, as charged under

count 7 of the information.”

B. Applicable Statutes

       Section 136.1 enumerates various crimes involving witness and victim

intimidation. Subdivision (a)(1) of section 136.1, which is the subdivision cited in the

complaint and information, concerns dissuading a witness or victim from testifying

(“dissuading testifying”). Subdivision (a)(1) states in relevant part: “(a) [A]ny person

who does any of the following is guilty of a public offense and shall be punished by

imprisonment in a county jail for not more than one year or in the state prison: [¶] (1)

Knowingly and maliciously prevents or dissuades any witness or victim from attending or

giving testimony at any trial, proceeding, or inquiry authorized by law.”

       Subdivision (b)(1) of section 136.1, which describes the crime of attempting to

prevent or dissuade a witness or victim from reporting a crime (“dissuading reporting a

crime”), provides: “(b) Except as provided in subdivision (c), every person who attempts

to prevent or dissuade another person who has been the victim of a crime or who is

witness to a crime from doing any of the following is guilty of a public offense and shall

be punished by imprisonment in a county jail for not more than one year or in the state

prison: [¶] (1) Making any report of that victimization to any peace officer or state or

local law enforcement officer or probation or parole or correctional officer or prosecuting

agency or to any judge.” This is the crime actually prosecuted in this case.

                                             14
C. Discussion

       Defendant argues there was no evidence that Aguirre was dissuaded or prevented

from testifying at trial in violation of the charged crime of violating section 136.1(a)(1).

Defendant further argues section 136.1(a)(2) and section 136.1(b)(1) are more applicable

to the evidence but violations of those statutes were not charged and therefore

defendant’s count 7 conviction must be reversed.

       The People acknowledge that the complaint and information mistakenly charged

defendant in count 7 with dissuading testifying, in violation of section 136.1(a)(1),

instead of alleging the actual crime of dissuading reporting a crime in violation of section

136.1(b)(1). The People argue that, nevertheless, because defendant was on notice the

prosecution intended to charge defendant with dissuading reporting a crime and the jury

was properly instructed on the intended charge, defendant was not prejudiced by the

charging error.

       “Due process of law requires that an accused be advised of the charges against

him; accordingly, a court lacks jurisdiction to convict a defendant of an offense that is

neither charged in the accusatory pleading nor necessarily included in the crime alleged.

[Citation.]” (In re Fernando C. (2014) 227 Cal.App.4th 499, 502-503.) Defendant

contends he cannot be convicted of violating section 136.1(b)(1), dissuading reporting a

crime, because he was neither charged with the crime nor was the crime a lesser included

offense of the charged crime. There was also no evidence defendant prevented or

dissuaded any witness or victim from attending the trial or testifying. Although there was

evidence defendant attempted to dissuade Aguirre from reporting the beer theft crime in

                                             15
violation of section 136.1(b)(1), that crime was not alleged in the complaint or

information. Defendant argues that, therefore, under Fernando C., defendant could not

be convicted of the crime, unless the section 136.1(b)(1) crime is a lesser included

offense of the charged crime, the section 136.1(a)(1) crime.

       The section 136.1(b)(1) crime is not a lesser included offense of the section

136.1(a)(1) crime. “Two tests are used to determine whether an offense is necessarily

included within another: the ‘elements’ test and the ‘accusatory pleading’ test. (People

v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test asks whether all the statutory

elements of the lesser offense are included in the elements of the greater offense. (Ibid.)

‘Stated differently, if a crime cannot be committed without also necessarily committing a

lesser offense, the latter is a lesser included offense within the former.’ (Ibid.) Under the

accusatory pleading test, a lesser offense is included within a greater ‘“‘if the charging

allegations of the accusatory pleading include language describing the offense in such a

way that if committed as specified the lesser offense is necessarily committed.’

[Citation.]”’ [Citation.]” (In re Fernando C., supra, 227 Cal.App.4th at p. 503.)

       In the instant case, all of the elements of the section 136.1(b)(1) crime are not

included in the section 136.1(a)(1) crime. A conviction under section 136.1(b)(1)

requires proof the defendant knowingly and maliciously prevented or dissuaded a witness

or victim from attending or giving testimony at trial. Those elements are not included in

the section 136.1(a)(1) crime, which requires proof the defendant attempted to prevent or

dissuade a crime victim or witness to the crime from making any report of that

victimization to any peace officer or law enforcement officer or probation or parole or

                                             16
correctional officer or prosecuting agency or to any judge. The charged crime concerns

dissuading a witness from testifying. The crime the People argue defendant was actually

convicted of involved dissuading a witness from reporting a crime. These two crimes

both involve dissuading a witness or victim but are different crimes. The instant case

does not involve convicting defendant of a more specific crime than a more general

statute alleged in the complaint. It involves designating the wrong subdivision of section

136.1 and describing the wrong crime.

       This charging error raises the issue of whether defendant’s due process right to

notice of the charges against him was violated. (People v. Ramirez (2003) 109

Cal.App.4th 992, 999.) The due process right that, one accused of a crime must be

informed of the nature and cause of the accusation, “is satisfied when the accused is

advised of the charges against him so that he has a reasonable opportunity to prepare and

present a defense and is not taken by surprise by the evidence offered at trial.” (Ibid.)

“[T]he right to defend has two related components, namely, the right to notice of the

charges, and the right to present a defense to those charges.” (People v. Jones (1990) 51

Cal.3d 294, 317.)

       Defendant’s reliance on People v. Mancebo (2002) 27 Cal.4th 735 for the

proposition the trial court could not substitute an unpleaded crime for another pleaded

crime, is misplaced. Mancebo is distinguishable in that the court’s holding turned on the

court finding noncompliance with the express pleading and proof requirements of section

667.61. In Mancebo, the court imposed two section 12022.5, subdivision (a), gun-use

enhancements, in the belief it could substitute an unalleged multiple victim circumstance

                                             17
(§ 667.61, subd. (e)(5)) for the expressly pleaded gun-use circumstances in order to

satisfy the “minimum number of circumstances” requirement for One Strike sentencing

(§ 667.61, subd. (f)).

       Although the prosecution failed in People v. Mancebo, supra, 27 Cal.4th 735, to

allege in the information a multiple victim circumstance pursuant to section 667.61,

subdivision (e)(5), the trial court relied on the multiple victim circumstance during

sentencing. The court concluded it was supported by other crime allegations and

evidence the crimes were committed against multiple victims. On appeal, the appellant

objected to reliance on the multiple victim circumstance. The respondent argued the trial

court could rely on the multiple victims circumstance, even though it was not alleged in

the information.

       The Mancebo court affirmed the Court of Appeal holding striking the section

12022.5, subdivision (a), gun-use enhancements on the ground relying on the multiple

victim circumstance violated the pleading and proof provisions of section 667.61 and the

defendant’s due process right to fair notice. There was no notice the People intended to

invoke the multiple victim circumstance to support One Strike sentencing, so that gun use

would become available as a basis for imposing additional section 12022.5, subdivision

(a), enhancements. (People v. Mancebo, supra, 27 Cal.4th at p. 739.) The Mancebo

court held the error was not harmless because the multiple victim circumstance had never

been pled and therefore could not be substituted in, in hindsight, as a basis for the One

Strike terms. (Id. at pp. 739, 754.)



                                             18
       Mancebo is inapposite. It concerns sentencing error arising from not alleging a

circumstance necessary for imposition of a sentencing enhancement under section

667.61, which expressly mandates the facts of the sentencing circumstance must be

alleged in the information. The instant case concerns failure due to clerical error to plead

the correct crime; it does not concern the failure to allege a sentencing allegation relied

upon for purposes of imposing an enhancement under section 667.61. Here, the felony

complaint and information allegations were incorrect, but the record shows the trial court

and counsel understood the charge to be a different crime than that alleged. In addition,

the trial court provided proper jury instructions for the crime prosecuted, and both

counsel’s closing arguments related to the unalleged crime, showing defendant had notice

of the actual crime prosecuted.

       Under California’s liberal pleading rules, a felony complaint is sufficient “‘if it

contains in substance, a statement that the accused has committed some public offense

therein specified. Such statement may be made in ordinary and concise language . . .

sufficient to give the accused notice of the offense of which he is accused.’ (Pen. Code,

§ 952.) There is ‘no requirement that the statute which the accused is charged with

violating be designated by number, and even a reference to the wrong statute has been

viewed of no consequence . . . .’ [Citation.] A mistake in designating the statute on

which a charge is based or in naming an offense is ‘“immaterial unless the defendant is

misled thereby . . . .”’ [Citation.] Consistent with this authority, we may not conclude

that a complaint is insufficient, or set aside a guilty plea or sentence unless we first

determine that a ‘defect or imperfection in matter of form’ has ‘prejudice[d] a substantial

                                              19
right of the defendant upon the merits.’ (Pen. Code, § 960.)” (People v. Ramirez, supra,

109 Cal.App.4th at p. 999.)

       Here, the complaint alleges in count 7 a different crime than the crime the People

prosecuted against defendant. The incorrect allegations in the complaint and information

do not require reversal because the erroneous allegations in count 7 did not prejudice

defendant’s substantial right to notice of the actual crime prosecuted against him or

impede his ability to defend against the crime. The prosecution argues defendant was on

notice he was charged in count 7 with attempting to dissuade Aguirre from reporting a

crime. The prosecution reasons that defendant could not have reasonably believed he

was being charged with the crime of dissuading Aguirre from testifying because

defendant committed the offense at the AM/PM store before the trial had commenced,

and Aguirre testified at trial. The prosecution further argues that it was clear from the

preliminary hearing transcript that defendant understood he was being prosecuted for

attempting to dissuade Aguirre from reporting a crime. (People v. Jones, supra, 51

Cal.3d at p. 317.)

       Our high court noted in Jones that “‘[i]t is clear that in modern criminal

prosecutions initiated by informations, the transcript of the preliminary hearing, not the

accusatory pleading, affords defendant practical notice of the criminal acts against which

he must defend.’” (Jones, supra, 51 Cal.3d at p. 318.) Even though the information in

the instant case erroneously alleged the crime in count 7 as dissuading testifying, Deputy

Vargas testified during the preliminary hearing that defendant told Aguirre not to call the

police and report that his friends had just stolen beer, because defendant’s friends “were

                                             20
his homies, and if [Aguirre] called, [defendant] was going to kill him.” There was no

testimony during the preliminary hearing that defendant dissuaded anyone from testifying

at trial or any other court proceeding. Following the preliminary hearing testimony, the

trial court found there was sufficient evidence to support the count 7 charge.

       In addition to the preliminary hearing transcript showing evidence defendant

committed the crime of dissuading reporting a crime, the jury instructions regarding

count 7, the evidence presented at trial, and both counsels’ closing arguments

demonstrate that the parties, counsel, and the trial court all knew defendant was being

prosecuted in count 7 for the crime of dissuading reporting a crime, not the crime of

dissuading testifying. Defendant had the opportunity to defend against the crime, and did

so. Defendant therefore did not suffer any prejudice to his right to notice of the actual

offense prosecuted in count 7 or to his right to present a defense, as a result of the

erroneous description of the count 7 crime in the complaint, information, and jury verdict.

In addition, there was no likelihood of prejudicial sentencing error in the event the court

relied on section 136.1(a)(1), instead of section 136.1(b)(1), because sentencing is the

same for both offenses (§ 136.1, subds. (a) & (b)).

       With regard to the misstatement of the crime and applicable statutory subdivision

in the verdict form for count 7, People v. Escarcega (1969) 273 Cal.App.2d 853, 858,

supports the proposition the clerical error is immaterial. In Escarcega, the defendant was

convicted of manslaughter, as a lesser included offense of murder (count 1). The crime

arose from a gang fight between rival gangs. The defendant committed manslaughter

when he shot a rival gang member in the abdomen. (Id. at p. 857.) The defendant argued

                                              21
on appeal that his manslaughter conviction was void because he was incorrectly

convicted of violating former subdivision 3 of section 192 (now codified as § 192, subd.

(c)), which concerns vehicular manslaughter. The court in Escarcega acknowledged the

defendant was not charged with vehicular manslaughter and could not have been

convicted of the crime because the evidence showed he died of a bullet wound.

       The court in Escarcega concluded it was clear that the cited code section cited in

the verdict was clerical error, particularly since the jury instructions referred to the

correct crime of manslaughter. The Escarcega court explained: “[I]t is clear that the

only problem presented is one of a clerical error in that the subdivision number of Penal

Code section 192[] was incorrectly designated. The jury was instructed on voluntary and

involuntary manslaughter. It is evident that the court clerk gave the jury a verdict form

with a wrong Penal Code subdivision inadvertently designated, and the jury, in returning

that form, simply desired and intended to find defendant guilty of a manslaughter, which,

under the circumstances here present, was a ‘lesser included offense.’ It is, of course,

clear that more care should have been taken in the preparation of the forms of verdict so

that a question such as is now presented would not arise. Counsel for defendant

apparently understood what was intended by the verdict since no objection was then

made to the form of the verdict. When read in the light of the record, it is clear what the

jury intended in its determination. [Citation.] In giving effect to the manifest intention of

the jury, the clerical error will be disregarded. [Citation.] The verdict ultimately returned

can be understood only as evidencing the jury’s determination to convict defendant of

manslaughter. Necessarily, it was of a kind other than that which is committed in the

                                              22
driving of a motor vehicle. Under these circumstances, we may and should correct the

verdict and judgment as entered by striking therefrom the incorrect subdivision

reference.” (People v. Escarcega, supra, 273 Cal.App.2d at p. 858, italics added.)

       Likewise, in the instant case the record shows that the verdict was incorrect due to

clerical error. It referred to the correct code section number, 136.1 regarding dissuading

a witness or victim, but designated the incorrect subdivision, (a)(1), instead of (b)(1),

along with describing the subdivision (a)(1) crime, instead of the subdivision (b)(1)

crime. In the instant case, the same clerical error occurred in the information and, most

likely, was carried over to the verdict form. As in Escarcega, the trial court instructed

the jury on the correct crime,3 there was no objection to the instructions or verdict for

count 7, both counsels’ closing arguments concerned the actual crime prosecuted, and the

evidence demonstrated that the crime of dissuading reporting a crime was the crime being

prosecuted against defendant. There was no evidence presented or argument relating to

commission of the subdivision (a)(1) offense of dissuading testifying. Defendant did not

demur or otherwise object to any asserted lack of notice. He therefore forfeited the issue

on appeal. (People v. Ramirez, supra, 109 Cal.App.4th at p. 997; People v. Bright (1996)

12 Cal.4th 652, 671 [“where defendant failed to object at trial to the adequacy of the

notice he received any such objection is deemed waived;” People v. Howington (1991)

233 Cal.App.3d 1052, 1058.)


       3  The court in Escarcega reversed the conviction, however, on another ground:
The trial court did not properly instruct the jury relative to manslaughter. (People v.
Escarcega, supra, 273 Cal.App.2d at p. 859.)

                                             23
       When read in the light of the entire record, it is clear what the jury intended in its

count 7 verdict. In giving effect to the manifest intention of the jury, the clerical error

will be disregarded. The verdict ultimately returned can be understood only as

evidencing the jury’s intent to convict defendant of attempting to dissuade a witness from

reporting a crime in violation of section 136.1, subdivision (b)(1). (People v. Escarcega,

supra, 273 Cal.App.2d at p. 858.) The judgment, as reflected in the trial court minute

orders entered on November 4, 2013, and January 10, 2014, therefore must be modified

as to count 7, to reflect that defendant was found guilty of violating subdivision (b)(1) of

section 136.1, instead of section 136.1, subdivision (a)(1).

                                                   V

                                           DISPOSITION

       The language in the information and verdict form for count 7 erroneously

describes the count 7 crime actually prosecuted. The crime should have been described

in the information and verdict as attempting to dissuade a witness or victim from

reporting a crime, in violation of subdivision (b)(1) of section 136.1. The trial court is

therefore ordered to strike the incorrect crime statute, section 136.1, subdivision (a)(1),

from the judgment, and substitute in the correct statute, section 136.1, subdivision (b)(1).

       The judgment is affirmed as modified. The trial court is further ordered to issue a

modified abstract of judgment showing defendant was convicted in count 7 of violating

section 136.1, subdivision (b)(1), not section 136.1, subdivision (a)(1). The trial court




                                              24
is directed to forward a certified copy of the modified abstract of judgment to the

Department of Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                      J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.




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