Filed 4/2/14 P. v. Thompson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                        COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Siskiyou)
                                                            ----




THE PEOPLE,                                                                                  C071910

                   Plaintiff and Respondent,                                          (Super. Ct. Nos.
                                                                                     MCYKCRBF11194,
         v.                                                                          MCYKCRF10570)

ROBERT WAYNE THOMPSON,

                   Defendant and Appellant.




         A jury found defendant Robert Wayne Thompson guilty of corporal injury to a
cohabitant (Pen. Code, § 273.5, subd (a); further statutory references are to the Penal
Code unless otherwise indicated; count 1), assault by force likely to cause great bodily
injury (§ 245, subd. (a)(1); count 2), battery with serious bodily injury (§ 243, subd. (d);
count 3), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 4),
dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 5), and five
counts of disobeying a protective order (§ 166, subd. (c)(1); counts 6 through 10). The


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jury found true allegations that defendant personally inflicted great bodily injury under
circumstances involving domestic violence (§ 12022.7, subd. (e)) in the commission of
counts one, two, and three.
       In a bifurcated proceeding, the trial court found that defendant had two prior
serious felony convictions: assault by force likely to cause great bodily injury in which he
personally inflicted great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)), and
conspiracy to assault in which great bodily injury was personally inflicted (§§ 182, 245,
subd. (a)(1), 12022.7). The court dismissed one prior serious felony conviction for
purposes of sentencing. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
Defendant was sentenced to prison for 30 years including fully consecutive middle terms
of four years each on counts four and five.
       Both parties appealed. We later granted the People’s request to dismiss their
appeal.
       Defendant contends (1) there was insufficient evidence of dissuasion from
reporting a crime, and (2) section 654 precludes imposition of sentence for both
dissuasion from reporting and dissuasion from prosecuting. We affirm the judgment.

                              FACTS AND PROCEEDINGS

       Our statement of facts is limited to counts four and five which are at issue in this
appeal.
       On the morning of February 6, 2011, Weed Police Officer Travis Cooke contacted
R.E. while she was seated on the front porch of defendant’s residence. She was crying
and appeared to be in pain. Her face had been cut and blood was running from her nose,
which was pushed to one side and appeared to be broken.
       R.E. told Officer Cooke that she had been in a physical altercation with defendant
who had been “hitting [her] like [she] was a man.” After he slapped her face, she struck
him back in self-defense and he struck her face with his fist. R.E. cried continuously


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during her five minute conversation with Officer Cooke. He summoned an ambulance
that took her to a hospital.
       Officer Cooke then spoke with defendant who said he was in a dating relationship
with R.E. who “frequently” stayed at his residence. He admitted that he had hit R.E. and
said that she had hit him too. Defendant was arrested and transported to the police
station.
       A month later, on March 7, 2011, R.E. visited defendant in jail. Officer Cooke
reviewed an audio recording of the jail visit. Within the first 10 to 15 minutes, defendant
had told R.E. that he might be charged with another crime for speaking to her. Then he
continued to speak with her for about an hour. During the conversation, he asked her to
have a no-contact order dropped and asked her not to make any statements to the district
attorney. R.E. asked defendant for money, and he told her he would try to get her some
money via his daughter.
       At 8:00 a.m. the next morning, March 8, 2011, defendant telephoned R.E. from the
jail. Officer Cooke reviewed the recording of the telephone call and identified both of the
voices. During this conversation, defendant again asked R.E. not to make any statements
to the district attorney.
       Two hours later, around 10:00 a.m., defendant again spoke with R.E. and said that
he should not be talking to her due to the no-contact order. He said he “would get
another charge” because he was talking with her. Defendant told R.E. that it was her
fault that he was in jail.
       A third telephone call occurred a few hours later, around 1:30 p.m. A fourth
telephone call was placed the next day, March 9, 2011. A fifth telephone call occurred
the following day, March 10, 2011. Officer Cooke did not recall whether these last three
conversations included discussion of R.E. talking with the district attorney.




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                                       DISCUSSION

                                                 I
                        Substantial Evidence of Dissuading the Victim
       Defendant contends his conviction on count four is not supported by substantial
evidence and must be reversed because his efforts at dissuading R.E. from reporting his
criminal conduct to the district attorney occurred after he had been arrested for that same
offense. In his view, “it made no sense to dissuade [R.E.] from reporting something that
was already known to the authorities.”
       Count four alleged in relevant part that defendant, “on or about March 7, 2011,
through March 10, 2011, did unlawfully attempt to prevent and dissuade [R.E.], a victim
and witness of a crime, from making a report of such victimization to a . . . prosecuting
agency . . . , violating Section 136.1(b)(1).”
       Count five alleged in relevant part that defendant, “on or about March 7, 2011,
through March 10, 2011, did willfully and unlawfully attempt to prevent and dissuade
[R.E.], a victim and witness of a crime[,] from causing a complaint [or information] . . .
to be sought and prosecuted and assisting in the prosecution thereof, in violation of
Section 136.1(b)(2).”
       Defendant’s preliminary examination was conducted on March 10, 2011.
       In his closing summation, the prosecutor told the jury: “Let’s talk about counts
[four] and [five], which, loosely termed, are called ‘dissuading witnesses.’ . . . [¶] The
instruction -- there is [sic] two kinds. Count [four], . . . dissuading [R.E.] from reporting
a crime. Count [five] is dissuading her from assisting in the prosecution of the crime.
[¶] So, they’re quite similar, but there is a somewhat different instruction as to each. . . .
[¶] Now, count [four], the issue is--what I have to prove is that [defendant] maliciously
tried to prevent or discourage [R.E.] from making a report that she was a victim of a
crime to law enforcement. [¶] Now, the basis of that is the phone calls between the 7th



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and the 10th of March that the officer told you about, and what did he do? Don’t talk to
the D.A. Don’t report what happened. Don’t tell them anything. Don’t report a crime.”
       The prosecutor continued: “Count [five] is slightly different, but similar. I have
to prove that he tried to discourage. Tried. Didn’t succeed, tried to discourage her from
cooperating or providing information so that a complaint could be sought and prosecuted,
and from helping to prosecute the action. [¶] Well, I’m the one prosecuting the action.
What did he say? Don’t talk to the people. It would have been helpful if she would have
done that, but she didn’t. He said not to. It doesn’t matter if she did or didn’t. He tried
to get her to not talk to us. That’s enough for count [five]. He’s guilty. That’s an easy
one. And he knew he was trying to do that. He knew.”
       “On appeal, the test of legal sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the prosecution
sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting
this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶]
While the appellate court must determine that the supporting evidence is reasonable,
inherently credible, and of solid value, the court must review the evidence in the light
most favorable to the [judgment], and must presume every fact the jury could reasonably
have deduced from the evidence. [Citations.] Issues of witness credibility are for the
jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
       Section 136.1, subdivision (b) provides in relevant part: “[E]very 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. [¶] (2) Causing a complaint, indictment,



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information, probation or parole violation to be sought and prosecuted, and assisting in
the prosecution thereof.”
         “To prove a violation of section 136.1, subdivision (b)(1), the prosecution must
show (1) the defendant has attempted to prevent or dissuade a person (2) who is a victim
or witness to a crime (3) from making any report of his or her victimization to any peace
officer or other designated officials.” (People v. Upsher (2007) 155 Cal.App.4th 1311,
1320.)
         Defendant argues that, for section 136.1, subdivision (b)(1) “to make any sense, its
application must relate [exclusively] to pre-arrest conduct, for no reasonable person
would dissuade a complaining witness from making a report of a criminal offense, when
his confinement established that such a report had already been made.”
         But so construed, section 136.1, subdivision (b)(1) would apply only where the
dissuaded victim or witness speaks to a prosecutor or judge or to a probation, parole or
correctional officer prior to an arrest. Unlike peace officers and state and local law
enforcement officers, who ordinarily get involved in the criminal process prior to arrest,
the involvement of prosecutors, judges and correctional, probation and parole officers
generally comes later--in some cases, years later. “A court should not lightly adopt an
interpretation of statutory language that renders the language useless in many of the cases
it was intended to govern.” (Williams v. Superior Court (1993) 5 Cal.4th 337, 354.) We
do not lightly read subdivision (b)(1) to apply to several of the listed officers only on
those rare occasions when they receive reports from victims prior to arrest.
         Defendant relies on People v. Fernandez (2003) 106 Cal.App.4th 943, 950
(Fernandez), which stated in dictum: “In People v. Hallock (1989) 208 Cal.App.3d 595,
605-607, the court concluded that the offenses defined in section 136.1, subdivision (b)
targeted pre-arrest efforts to prevent a crime from being reported to the authorities, rather
than courtroom testimony. [¶] We agree with Hallock’s conclusion that section 136.1,



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subdivision (b) punishes a defendant’s pre-arrest efforts to prevent a crime from being
reported to the authorities.” Defendant’s reliance on this dictum is misplaced.
       The question presented in Fernandez was “whether an attempt to dissuade a
witness from making a ‘report . . . to any judge’ includes an attempt to influence a
victim’s testimony at a preliminary hearing.” (Fernandez, supra, 106 Cal.App.4th at
p. 945.) Answering this question in the negative, Fernandez explained: “Starting with
the ‘plain and commonsense meaning’ of section 136.1, subdivision (b)(1), a ‘report’
may be generally defined as ‘an account presented.’ [Citation.] In the context of
reporting a crime, it generally means notifying the authorities that the crime has occurred
and providing information about the offense. ‘Testimony,’ on the other hand, is more
specifically defined as a ‘declaration by a witness under oath, as that given before a
court.’ [Citation.] In some contexts, the term ‘report’ could reasonably encompass
‘testimony,’ as, for example, when members of a factfinding committee present their
conclusions to the United States Congress while under oath. But neither lawyers nor
laypeople are apt to characterize testimony by a witness in a criminal proceeding as a
‘report.’ Common usage of the word ‘report’ does not support the People’s interpretation
of section 136.1, subdivision (b)(1), even if preliminary hearing testimony would literally
fall within the definition of ‘report’ as ‘an account presented.’ ” (Id. at p. 948.)
       The present case is distinguishable from Fernandez because defendant’s
dissuasion preceded the preliminary hearing, if only by a matter of days. Fernandez does
not hold that “[m]aking any report of . . . victimization” cannot include the act of
“providing information about the offense” to a prosecutor following an arrest and prior to
a preliminary examination. (Fernandez, supra, 106 Cal.App.4th at pp. 947-948; see also
People v. Velazquez (2011) 201 Cal.App.4th 219, 232-233 [limiting the Fernandez
dictum to section 136.1, subdivision (b)(1), thus excluding subdivision (b)(2)].)
       Fernandez relied on People v. Hallock, supra, 208 Cal.App.3d 595, 607, which
explained that “Section 136.1 basically prohibits four forms of witness intimidation. In

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subdivision (a), it forbids knowingly and maliciously preventing or dissuading a witness
or victim from attending or testifying at trial. Subdivision (b) prohibits preventing or
dissuading a witness or victim from (1) reporting the victimization; (2) causing a
complaint or similar charge to be sought; and (3) arresting or causing or seeking the
arrest of any person in connection with such victimization.” (Italics added.) In Hallock,
“the threat was made at the time of the original crime and was as follows: ‘if you tell
anybody anything that happened tonight here, . . . I’ll blow your house up.’ ” (Ibid.)
Hallock thus had no occasion to consider whether subdivision (b)(1) could include a
postarrest and pre-preliminary examination report to the prosecuting agency. Although
Fernandez described Hallock as concluding that section 136.1, subdivision (b) “targeted”
prearrest efforts, neither case held the statute inapplicable to postarrest reports that
precede any courtroom testimony.
       Neither Fernandez nor Hallock considered the sort of dissuasion here at issue: a
postarrest request “not to make any statements to the [district attorney’s]” office about
the case. This request is broader than a mere request to not testify at the preliminary
hearing or at trial: it asks the witness to not report to the district attorney’s office any
facts of the case including, most importantly, any facts not previously reported to the
police. Where, as here, the defendant is taken into custody at or near the time of the
offense, the prosecution’s fact-gathering process ordinarily must continue while the
defendant is in custody. We find no indication that the Legislature intended to exempt
this fact-gathering process from the protection of section 136.1 and thus encourage the
sort of dissuasion shown on the present record. We decline to give the statute an absurd
construction under which the victim, having reported the incident to one entity and
having secured the perpetrator’s temporary incarceration, must then endure the
perpetrator’s dissuasion from reporting facts of the offense to other listed entities. (E.g.,
People v. Story (2009) 45 Cal.4th 1282, 1293.)



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       The record contains abundant evidence that defendant repeatedly attempted to
dissuade R.E. from reporting her victimization to the district attorney. (People v. Upsher,
supra, 155 Cal.App.4th at p. 1320.) It was not necessary to prove that R.E. was, in fact,
dissuaded or that she would have reported to the prosecution any details not previously
disclosed to the police. Defendant’s count four conviction is supported by substantial
evidence. (People v. Boyer, supra, 38 Cal.4th at pp. 479-480.)
                                              II
                           Dual Punishment Under Section 654
       Defendant contends that, even if the judgment as to count four is supported by
substantial evidence, the prison term for that offense must be stayed pursuant to section
654 in order to avoid dual punishment.
       At sentencing, the trial court addressed counts four and five. The court noted that
the charges arose from recorded conversations that R.E. had with defendant while he was
in jail. The court remarked that the jury implicitly had determined that the conversations
were “efforts on [defendant’s] part to subvert the criminal justice system having to do
with his charges.”
       The trial court stated it “is aware that there is some continuity between [counts
four and five] and that [R.E.] was a willing recipient of such suggestions. And the court
recognizes that there is an argument to be made that section 654 could apply to these two
charges, but the court finds that these two efforts were not the same act. They were two
acts on different days with the same objective, but they were multiple acts. So the court
does not believe that it is obligated to conclude that it was a single act that must be
punished only once.” The court reiterated that “having heard the evidence at trial, it’s
this court’s conclusion that these were separate acts and it is appropriate that they be
punished separately.”
       Section 654 provides in relevant part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that

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provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” “The failure of defendant to
object on this basis in the trial court does not forfeit the issue on appeal. [Citation.]”
(People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
       “ ‘The proscription against double punishment in section 654 is applicable where
there is a course of conduct which . . . comprises an indivisible transaction punishable
under more than one statute . . . . The divisibility of a course of conduct depends upon
the intent and objective of the actor, and if all the offenses are incident to one objective,
the defendant may be punished for any one of them but not for more than one.’
[Citation.] ‘The defendant’s intent and objective are factual questions for the trial court;
[to permit multiple punishments,] there must be evidence to support a finding the
defendant formed a separate intent and objective for each offense for which he was
sentenced. [Citation.]’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v.
Latimer (1993) 5 Cal.4th 1203, 1208.)
       Relying on this one-intent-and-objective test, defendant argues that he possessed
the identical criminal intent during each attempt to convince R.E. not to speak to the
county prosecutor about his criminal conduct. But “a finding that multiple offenses were
aimed at one intent and objective does not necessarily mean that they constituted ‘one
indivisible course of conduct’ for purposes of section 654. If the offenses were
committed on different occasions, they may be punished separately.” (People v. Kwok
(1998) 63 Cal.App.4th 1236, 1253.)
       “As our Supreme Court has explained in referring to section 654, ‘a course of
conduct divisible in time, although directed to one objective, may give rise to multiple
violations and punishment.’ [Citation.] ‘This is particularly so where the offenses are
temporally separated in such a way as to afford the defendant opportunity to reflect and
to renew his or her intent before committing the next one, thereby aggravating the
violation of public security or policy already undertaken.’ [Citation.] This rule has been

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applied in numerous instances when several crimes could broadly be described as part of
an overarching criminal plan, but were committed on different days. [Citations.]”
(People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289, citing People v. Beamon
(1973) 8 Cal.3d 625, 639, fn. 11.)
       The trial court appears to have invoked this rule when it stated “[t]hey were two
acts on different days with the same objective, but they were multiple acts.” The
evidence showed that defendant had ample opportunity to reflect and to renew his intent
between the first conversation on March 7, 2011, and the second conversation the
following day. (E.g., People v. Trotter (1992) 7 Cal.App.4th 363, 365-367 [two assaults
on same victim one minute apart may be punished separately].) The court’s imposition
of punishment on counts four and five is supported by substantial evidence. (People v.
Coleman, supra, 48 Cal.3d at p. 162.)
                                             III
                                 Abandonment of Appeal
       On October 12, 2012, the trial court imposed sentence in the present case as well
as in an unrelated 2010 case, No. MCYKCRF10570. We granted defendant’s appellate
counsel’s request to construe his notice of appeal as including an appeal from the 2010
case. Counsel explained that, if the notice of appeal were not so construed, he would be
unable to seek relief from an error with respect to presentence credits.
       Appellate counsel later filed an opening brief raising the claims we considered in
parts I and II and making no claim of error with respect to presentence credits.
Accordingly, we deem the appeal in the 2010 case to be abandoned and order the appeal
dismissed.




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                                 DISPOSITION

      In case No. MCYKCRBF11194, the judgment is affirmed. In case No.
MCYKCRF10570, the appeal is dismissed.



                                                HULL                , Acting P. J.



We concur:



     ROBIE              , J.



     HOCH               , J.




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