Filed 8/27/20 P. v. Magee CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


    THE PEOPLE,
                                                                                             F077067
           Plaintiff and Respondent,
                                                                               (Super. Ct. No. BF168256A)
                    v.

    LOUIS TRUMAN MAGEE,                                                                   OPINION
           Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua
and Michael G. Bush, Judges.†
         Hilda Scheib, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer
Oleksa and Cavan M. Cox, II, Deputy Attorneys General, for Plaintiff and Respondent.

†      Judge John W. Lua denied defendant’s Penal Code section 1181.1 motion and
presided over defendant’s trial and sentencing; Judge Michael G. Bush denied
defendant’s Penal Code section 995 motion.
                                            -ooOoo-
                                      INTRODUCTION
       Defendant Louis Truman Magee was charged with and convicted by jury of the
attempted premeditated murder of his former fiancée (Pen. Code, §§ 664/187/189;
count 1),1 stalking (§ 646.9, subd. (b); count 2), making criminal threats (§ 422; count 3),
two counts of contempt of court for violating a protective order (§ 166, subd. (c)(4);
counts 4 & 5), assault on a peace officer (§ 245, subd. (c); count 6), evading a peace
officer (Veh. Code, § 2800.2; count 7), and misdemeanor hit and run (Veh. Code,
§ 20002, subd. (a); count 8). Defendant was sentenced to an indeterminate term of life in
prison with the possibility of parole for attempted premeditated murder, consecutive to a
total determinate term of seven years four months as follows: the upper term of five
years for assault on a peace officer, one year for stalking, eight months for the first count
of violating a protective order, and eight months for evading a peace officer. The court
imposed concurrent terms of three years each for making criminal threats and for the
second count of violating a protective order, and a concurrent term of 180 days in jail for
misdemeanor hit-and-run.
       On appeal, defendant challenges his conviction on count 1 for attempted
premeditated murder and his convictions on counts 4 and 5 for violating a protective
order. As to count 1, defendant claims the trial court erred when it denied his motion for
acquittal under section 1118.1 and the jury’s verdict is not supported by substantial
evidence of intent to kill, commission of an overt act, or premeditation. As to counts 4
and 5, he claims the trial court erred when it omitted two elements from its instruction to
the jury on section 166, subdivision (c)(4).




1      All further statutory references are to the Penal Code unless otherwise specified.


                                                2.
       The People dispute defendant’s entitlement to relief from his conviction for
attempted premeditated murder, but they agree the court erred in instructing the jury on
violation of a protective order under section 166, subdivision (c)(4).
       We reject defendant’s claim that the trial court erred in denying his section 1118.1
motion and find substantial evidence supports his conviction for attempted premeditated
murder. However, we concur with the parties that the trial court erred when it instructed
the jury, we find the error prejudicial under Chapman v. California (1967) 386 U.S. 18,
24 (Chapman), and, as explained post, we accept the parties’ concession and modify the
verdicts on counts 4 and 5 to reflect misdemeanor convictions under section 166,
subdivision (c)(1). Finally, on our own motion, we order the trial court to correct the
clerical error in the abstract of judgment addressed in part III. of the Discussion.
       Except as modified, the judgment is affirmed.
                                 FACTUAL SUMMARY
I.     Prosecution Case
       A.     Background
       Defendant and his former fiancée, L.S., were together for three years before
breaking up in September 2016. At that time, they lived in L.S.’s apartment in
Bakersfield and she permitted him to continue living there for a while because he had
nowhere to go. L.S. testified that they did not get back together, but after she moved in
with her cousin next door, she brought him food because he was not working and he did
not have the key to the apartment so she would have to let him in sometimes.
       At the beginning of January 2017, L.S. obtained a restraining order against
defendant. On January 7, 2017, defendant called her more than five times from his own
phone and from blocked phone numbers, even though she had changed her phone
number. L.S. testified that defendant threatened to kill her and then himself, and she
feared for her safety. He also left a voicemail message stating, “Answer your phone,



                                              3.
bitch.” L.S. called 911 and reported that defendant kept calling her, including at her job,
despite the restraining order.
       On January 25, 2017, defendant called L.S. more than 10 times from different
phone numbers and left messages. She testified he also came over to the apartment and
threw rocks at the window to get her to come out. L.S. called 911 in fear and reported
that defendant kept calling her, in violation of the restraining order. Officer Vining, who
responded to the call, testified that he saw approximately 28 missed calls on L.S.’s call
log from unknown numbers and also saw text messages from unknown numbers. L.S.
told Vining that she sometimes received calls at work from unknown numbers and that
she had changed her phone number in the past because defendant was contacting her.
       When her lease expired in January 2017, L.S. moved in with her cousin, A.W.,
who lived in the apartment next door.
       B.     Charged Events
              1.     Incident on May 1, 2017
       On May 1, 2017, L.S. was hanging out at the apartment with A.W. and another
cousin, A.G. Earlier in the day, defendant texted L.S. and made comments regarding
where she was and what she was wearing, which caused her to believe he was following
her. L.S. later received a call from defendant telling her he was outside and he wanted
her to come out. She testified that he threw a rock at the bedroom window and she saw
him outside driving with his lights off, running up and down the stairs, and hiding around
bushes. L.S. testified that she feared for her life because prior to showing up, defendant
threatened over the phone to harm her and himself. A.G. heard defendant threaten to kill
L.S. when the phone was on speaker, and when defendant showed up, A.G. called 911
before turning the call over to L.S. It was dark outside, and L.S. reported defendant had
his lights off and she did not know where he was.
       The entrance gate into the apartment complex was not working at the time and,
when the police arrived, L.S. left the apartment to trigger the exit gate with her car so that

                                              4.
police could enter the complex. After L.S. got into her car, defendant pulled up behind
her in his car, blocking her in. He bumped the rear of her car with the front of his car and
then drove toward the exit gate.
       Officers Glenn and Salazar arrived at the apartment complex in response to the
911 call shortly after 11:30 p.m. Someone drove out of the complex, which allowed
Glenn to drive the patrol car in through the exit gate. Several other responding patrol
cars remained outside of the gate. Glenn and Salazar heard screaming and cries for help
from a group of women. Someone yelled, “‘That’s him,’” and pointed toward
defendant’s car, which was then behind L.S.’s car blocking it in. Glenn parked the patrol
car and Salazar was in the processing of exiting from the passenger side when defendant
turned his car toward them and accelerated at a high rate of speed. Glenn testified that
Salazar “dove” back into the patrol car and if she had not done so, defendant would have
hit her with his vehicle. Glenn thought defendant was going to hit their patrol car head
on and braced for impact. Defendant drove to the exit gate, however, and while he
waited for it to open, Glenn turned the patrol car around and pulled behind defendant.
       Glenn and Salazar followed defendant out of the apartment complex. During the
ensuing pursuit, defendant ran multiple red lights at high speed and once he was on the
highway, he accelerated up to 115 miles per hour. At one point, he lost control of his car
and hit a cement guardrail. After they broke off the pursuit for safety reasons, Glenn and
Salazar returned to the apartment complex and spoke with L.S., A.G., and A.W. While
the officers were there, defendant called L.S.’s phone and she answered. Defendant then
spoke to Glenn and identified himself as the individual involved in the pursuit.
Defendant agreed to meet Glenn at the Kmart parking lot but when Glenn responded to
that location, defendant failed to show up.
              2.     Incident on May 9, 2017
       L.S. moved out of her cousin’s apartment shortly thereafter. Subsequently, on
May 9, 2017, A.W. was asleep in the bedroom she and L.S. had shared before L.S.

                                              5.
moved out. A.W. heard defendant jiggle the door and call for L.S. Defendant threw
rocks at the bedroom window and A.W. heard him at the window. After A.W. heard a
loud bang against the window, she feared he was going to break in and called 911. A.W.
testified that she told defendant L.S. was not there and he would become silent for a
while before returning. A.W. stated that defendant had behaved similarly on other
occasions and she would wait for him to leave, but this time “felt different” and she
feared for her life.
       Multiple officers, including Glenn and Salazar, were dispatched to A.W.’s
apartment at approximately 2:45 a.m. They searched the apartment complex and Glenn
located defendant hiding in the backseat of his car, which was backed into a parking stall.
From that position, defendant had a direct view of A.W.’s apartment, including the door,
windows, and stairwell to the apartment, which was on the second story. Salazar located
a bag in the front seat of the car that contained a large, fixed-blade butcher knife, duct
tape, yellow rubber dishwashing gloves and multiple large trash bags. The items
appeared to be new. Salazar also observed what appeared to be fresh smudge marks
consistent with fingerprints on the bedroom window.
       Officer Glenn testified that defendant admitted he knew there was a restraining
order against him, admitted he had threatened to kill L.S. on May 1, 2017, and stated that
he and L.S. had a “negatively reinforced relationship.” Defendant expressed he was
upset because he believed that L.S. had been unfaithful to him and that he had sacrificed
a lot for her. Glenn also testified that defendant first said he had the items in his car
because his aunt was getting rid of things, but he later admitted that he brought them to
L.S.’s apartment “in order to have a discussion with [her].”
II.    Defense Case
       Officer Yeary responded to L.S.’s 911 call on January 7, 2017. Yeary testified
that L.S. did not report that defendant was physically present, that defendant threatened to
kill her or himself, or that she had voicemails or texts from him threatening to kill her;

                                              6.
and Yeary did not take a photo of any text messages. Yeary did not recall if L.S.
described an incident where defendant grabbed her arm, but Yeary did not document such
an incident in her report. On cross-examination, Yeary confirmed that there was a valid
restraining order in place on January 7, 2017, L.S.’s cell phone showed 10 missed calls
from blocked numbers, L.S. told her defendant often called from blocked numbers, and
L.S. played a voicemail from defendant in which he stated, “‘Answer your phone,
bitch.’”
       Officer Salazar testified that she did not recall L.S. telling her that defendant
walked up the stairs to the apartment on May 1, 2017, that he hid by the bushes and the
pool area, or that he threw rocks at the window; and that information was not documented
in Officer Glenn’s report. On cross-examination, Salazar testified that both L.S. and
A.G. appeared stressed out on May 1, 2017.
       Finally, defendant’s cousin, L.R., testified that defendant lived with her in Los
Angeles between January or February 2017 and April 2017. During that time, L.R. saw
and heard defendant and L.S. conversing by video call and on speaker phone. L.R. heard
L.S. initiate a phone call to defendant in April 2017, and L.S. and defendant would talk
like “boyfriend and girlfriend” during calls.
       L.R. testified that in April 2017, her mother wanted some household items
removed from the house they shared, and they asked defendant to help and to straighten
up outside in the yard. They gave him trash bags and tape to pack things and yellow
rubber gloves because the task was dirty. On cross-examination, L.R. said they used a
knife and scissors; the filled, taped bags of items were taken to Goodwill in Los Angeles;
and defendant used the rubber dish gloves because it was dirty and dusty outside.
III.   Rebuttal
       On rebuttal, Officer Salazar testified that the yellow rubber gloves she seized from
defendant’s car appeared to be brand new and did not have any dirt or dust on them. The
trash bags also appeared to be brand new.

                                                7.
                                        DISCUSSION
I.     Substantial Evidence Claim
       With respect to the attempted premeditated murder of L.S., defendant claims that
the trial court erred in denying his motion to set aside the information under section 995
and his motion for acquittal under section 1118.1, made at the close of the People’s case-
in-chief; and that his conviction is not supported by substantial evidence.2 The People
contend that there was no error and the jury’s verdict on count 1 is supported by
substantial evidence. We agree with the People.
       A.      Standard of Review
       “The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense[]” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the
relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial
evidence to support the verdict—i.e., 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. Zamudio, supra, at p. 357.)




2      Despite defendant’s mention of the erroneous denial of his section 995 motion,
we do not interpret his brief as advancing an appellate claim based on the denial of the
motion and, therefore, we confine our discussion to the sufficiency of the evidence
supporting the jury’s verdict on count 1. (People v. Letner and Tobin (2010) 50 Cal.4th
99, 140 [a defendant cannot establish denial of section 995 motion was prejudicial error
where conviction supported by substantial evidence].)


                                               8.
       “In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (People v. Zamudio, supra, 43
Cal.4th at p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of
the defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “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. Zamudio, supra, at p. 357.)
       This standard of review applies to a trial court’s ruling on a motion for judgment
of acquittal under section 1118.1. (People v. Dalton (2019) 7 Cal.5th 166, 249, citing
People v. Stevens (2007) 41 Cal.4th 182, 200; accord, People v. Houston (2012) 54
Cal.4th 1186, 1215.) “‘“The purpose of a motion under section 1118.1 is to weed out as
soon as possible those few instances in which the prosecution fails to make even a prima
facie case.” [Citations.] The question “is simply whether the prosecution has presented
sufficient evidence to present the matter to the jury for its determination.” [Citation.]
The sufficiency of the evidence is tested at the point the motion is made. [Citations.]
The question is one of law, subject to independent review.’” (People v. Dalton, supra, at
p. 249, quoting People v. Stevens, supra, at p. 200; accord, People v. Houston, supra, at
p. 1215.)
       B.     Elements of Attempted Premeditated Murder
       “An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
While murder is an unlawful killing with express or implied malice aforethought (§§ 187,
subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220), attempted murder
requires specific intent to kill, or express malice, “‘and the commission of a direct but
ineffectual act toward accomplishing the intended killing’” (People v. Smith (2005) 37



                                             9.
Cal.4th 733, 739; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653–654).3 Express
malice is shown when the defendant “‘either desires the victim’s death, or knows to a
substantial certainty that the victim’s death will occur.’” (People v. Houston, supra, 54
Cal.4th at p. 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
       “For an attempt, the overt act must go beyond mere preparation and show that the
killer is putting his or her plan into action; it need not be the last proximate or ultimate
step toward commission of the crime or crimes [citation], nor need it satisfy any element
of the crime [citation].” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8
(Decker); accord, People v. Garton (2018) 4 Cal.5th 485, 514 (Garton).) “[E]vidence of
motive is often probative of intent to kill[,]” but it “is not required to establish intent to
kill[.]” (People v. Smith, supra, 37 Cal.4th at p. 741.) Intent “may in many cases be
inferred from the defendant’s acts and the circumstances of the crime.” (Ibid.)
       Unlike murder, “attempted murder is not divided into degrees, but the sentence
can be enhanced if the attempt to kill was committed with premeditation and
deliberation.” (People v. Gonzalez, supra, 54 Cal.4th at p. 654.) More than a specific
intent to kill is required to support a finding of deliberation and premeditation. (People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Deliberation’ refers to careful weighing of
considerations in forming a course of action; ‘premeditation’ means thought over in
advance.” (Ibid.) “‘The process of premeditation and deliberation does not require any
extended 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.]’” (Ibid.)
       “In People v. Anderson (1968) 70 Cal.2d 15, 26–27 [(Anderson)], [the Supreme]
[C]ourt reviewed earlier decisions and developed guidelines to aid reviewing courts in


3      Section 188 was amended effective January 1, 2019, but that amendment is not
relevant to the issues raised in this appeal. (Stats. 2018, ch. 1015, § 2, p. 3.)


                                               10.
assessing the sufficiency of evidence to sustain findings of premeditation and
deliberation. [Citation.] [The court] described three categories of evidence recurring in
those cases: planning, motive, and manner of killing.” (People v. Halvorsen (2007) 42
Cal.4th 379, 419–420.) “[H]owever, ‘[u]nreflective reliance on Anderson for a definition
of premeditation is inappropriate.’” (People v. Koontz, supra, 27 Cal.4th at p. 1081;
accord, People v. Casares (2016) 62 Cal.4th 808, 824, disapproved on another ground by
People v. Dalton, supra, 7 Cal.5th at p. 214.) The “guidelines are descriptive and neither
normative nor exhaustive, and … reviewing courts need not accord them any particular
weight.” (People v. Halvorsen, supra, at p. 420; accord, People v. Casares, supra, at
p. 824.).)
       C.      Analysis
               1.      Attempted Murder Conviction
                       a.      Intent to Kill
       Defendant argues that there is insufficient evidence supporting the jury’s finding
that he acted with intent to kill L.S., and he characterizes the evidence that he made “a
credible threat” against her on May 1, 2017, as “dubious.” Relying on People v. Miller
(1935) 2 Cal.2d 527 (Miller), discussed below, defendant contends that regardless,
making a threat is not necessarily sufficient to prove intent to kill and “the law cannot
assume that [his] presence at the apartment complex would ‘ripen into a criminal act.’”
In reference to evidence that he showed up other times trying to get L.S.’s attention and
that he would sometimes sleep on the apartment complex grounds, he also contends there
is no indication his presence at the complex on May 9, 2017, was restricted to that night
or related to an intent to kill.
       We find defendant’s arguments unpersuasive. Issues of witness credibility are
reserved for the trier of fact, and although the jury might have concluded that L.S., A.G.,
and A.W. lacked credibility and rejected their version of events, it was not compelled by
the evidence to do so. As discussed, our task on review is confined to determining

                                                11.
whether, viewed in the light most favorable to the prosecution, the jury’s verdict is
supported by substantial evidence.
                            1)       Evidence Sufficient
       In this case, there is evidence that between the time L.S. obtained a restraining
order against defendant in early January 2017 and May 1, 2017, he threatened to kill her
and himself, he threatened to harm anyone who stood in his way, he threatened to show
up at L.S.’s place of employment, and he repeatedly harassed her. L.S. testified that on
May 1, 2017, defendant threatened to harm her prior to showing up at the apartment
complex and she feared for her life, A.G. testified that she heard defendant threaten to kill
L.S. that day, and Officer Glenn also testified that defendant admitted threatening to kill
L.S. on May 1, 2017. That specific threat to kill, which also underpinned the stalking and
criminal threats counts, was highlighted by the prosecutor during closing when she
argued that defendant showed up on May 9, 2017, with the intent to kill L.S.
       L.S. denied inviting any contact by defendant or engaging with him, and she
testified unequivocally that she feared for her safety and believed defendant was capable
of killing her. She changed her phone number repeatedly in an effort to keep defendant
from contacting her, but he would find out her new number; and during the time period in
question, he flooded L.S. with repeated calls and texts from different blocked numbers,
including calling her place of employment. L.S. testified that she was afraid to be alone
and she stayed with different family members to avoid being found by defendant, and
that after her apartment lease expired, she moved in with her cousin so she would not be
alone. L.S. said defendant would “spy” on her and she described a park-like area in the
apartment complex where he would sleep. When she called the police, he would hide in
the complex and then return after police left. She also described living under such stress
that she was unable to sleep or think straight, she was always concerned that he might be
outside the apartment, and she eventually left her job due to the stress and fear defendant
would show up there.

                                             12.
       Against this backdrop, defendant made clear to L.S. through phone calls and texts
that he was following her on May 1, 2017, and he threatened to harm her and himself.
He then showed up at L.S.’s and A.W.’s apartment, where L.S. and A.G. saw him driving
around without his headlights on. Defendant called L.S. and wanted her to come outside.
L.S. feared for her life and her cousin called 911. When L.S. went to her car so she could
trigger the exit gate to let the police in, defendant drove up behind her and tapped her car
with his.
       Defendant then drove directly at Officer Salazar before initiating a high speed
pursuit with the police. Despite the fact that he was being pursued by the police,
defendant called L.S. multiple times and even spoke once with Officer Glenn.
       The events on May 1, 2017, caused L.S. to move out of the apartment she shared
with A.G. in fear and she testified that she planned to go somewhere defendant could not
find her. On May 9, 2017, L.S. had already moved out, but defendant was not aware of
this and he once again drove into the gated apartment complex looking for L.S. It was
the middle of the night. A.W., who had been asleep, testified that she heard defendant
rattle the front door and the window of the bedroom she and L.S. shared before L.S.
moved out. Defendant called out for L.S. even though A.W. told him L.S. was not there,
and he threw rocks at the window until he hit it so hard with something that A.W. called
the police in fear he was going to get into the apartment.
       After police arrived, they found defendant hiding in the backseat of his car, which
was backed into a parking stall in a position that allowed defendant to see the door, the
windows and the stairwell leading up to the apartment. On the front seat of the car was a
bag containing items that would enable him to commit a killing: a large butcher knife,
duct tape, gloves and trash bags. During interrogation, defendant admitted that he was
upset with L.S., that he had threatened to kill her on May 1, 2017, and that he brought the
items with him “to have a discussion with [her].”



                                            13.
       This evidence, viewed in the context of defendant’s ongoing obsessive, abusive
behavior toward L.S. and his threats to kill her, overwhelmingly supports the jury’s
finding that on May 9, 2017, defendant acted with the intent to kill L.S. Defendant’s
contrary argument requires that we view the evidence in the light most favorable to him
and conclude that he intended only to get L.S.’s attention on May 9, 2017, that his
presence may be attributed to his pattern of lurking around the apartment complex or
sleeping in its park, and that the bagged items “are also consistent with innocent
household use or unrelated to [L.S.] or to attempted murders.” These arguments
disregard the applicable standard of review and we reject them.
                            2)     Miller Decision
       Defendant’s reliance on Miller is of no assistance. In Miller, the defendant, who
was white, threatened to kill the victim, who was black, for “annoying [the defendant’s]
wife.” (Miller, supra, 2 Cal.2d at p. 529.) The threat was made at the post office in the
presence of third parties, but not the victim. (Ibid.) The victim was employed by the
Booneville town constable and when the defendant entered the constable’s hop field with
a rifle that afternoon, the constable was 250 to 300 yards away and the victim was
30 yards beyond the constable. (Ibid.) The defendant walked toward the constable and
stopped 100 yards in, apparently to load his rifle. (Ibid.). The victim fled during this time
and the defendant, without ever raising his weapon, continued walking toward the
constable, who took the rifle from the defendant without any resistance. (Ibid.)
       The jury convicted the defendant of attempted murder, but the California Supreme
Court deemed the evidence of intent insufficient and reversed the conviction, stating, “In
the present case, up to the moment the gun was taken from the defendant no one could
say with certainty whether the defendant had come into the field to carry out his threat to
kill [the victim] or merely to demand his arrest by the constable. Under the authorities,
therefore, the acts of the defendant do not constitute an attempt to commit murder.”
(Miller, supra, 2 Cal.2d at p. 532.) The court also found the trial court committed

                                             14.
prejudicial instructional error regarding the element of intent, but its holding rested on the
insufficiency of the evidence. (Id. at pp. 532–533.)
       Assuming Miller would be decided the same way today with respect to the
sufficiency of the evidence, the decision is readily distinguishable.4 The court’s
determination was expressly informed by the facts that the defendant was upset not only
at the victim, but with law enforcement’s inaction and that the defendant walked directly
up to the constable before giving up his rifle without resistance. (Miller, supra, 2 Cal.2d
at p. 532.) In this case, defendant communicated his threats directly to the victim, he
went to what he believed was her place of residence, and there was no ambiguity
resulting from third party involvement, let alone third party law enforcement
involvement. Accordingly, the decision in Miller is inapt.
                       b.     Overt Act
       Defendant also challenges the sufficiency of the evidence that he committed an
overt act toward the commission of L.S.’s murder. In the trial court, the parties argued
over the applicability of the decision in People v. Morales (1992) 5 Cal.App.4th 917
(Morales) in the context of defendant’s motions under sections 995 and 1118.1, and the
judge who denied defendant’s section 995 motion was expressly persuaded by the
opinion. However, defendant contends that reliance on Morales is misplaced because the
decision was informed by the “‘slight acts’” rule, which does not apply in this case given
that “evidence of [his] intent to kill [L.S.] was weak, inconsistent and unsupported by the
testimony.”




4       “‘Courts exercising inferior jurisdiction must accept the law declared by courts of
superior jurisdiction. It is not their function to attempt to overrule decisions of a higher
court.’” (People v. Letner and Tobin, supra, 50 Cal.4th at pp. 197–198, quoting Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)


                                                15.
                            1)     “Slight Acts” Rule
       “When a defendant’s intent is ‘“clearly shown, slight acts done in furtherance of
that design will constitute an attempt, and the courts should not destroy the practical and
common-sense administration of the law with subtleties as to what constitutes preparation
and what constitutes an act done toward the commission of a crime.”’” (People v. Davis
(2009) 46 Cal.4th 539, 606, quoting People v. Memro (1985) 38 Cal.3d 658, 698,
overruled on another ground by People v. Gaines (2009) 46 Cal.4th 172, 182, fn. 2.)
Here, as discussed, defendant’s intent to kill L.S. is clearly shown by the evidence and,
therefore, we are unpersuaded by his argument that the “‘slight acts’” rule is inapplicable.
       In the early morning hours of May 9, 2017, defendant drove to and entered the
gated apartment complex where he believed L.S. lived. He brought with him tools
capable of muffling and restraining L.S., killing her, and hiding or disposing of evidence;
and he had a direct line of sight to the apartment from his car. A.W. testified that she
heard defendant jiggling the front door and bedroom window, causing her to believe he
was trying to get inside the apartment, and Officer Salazar testified the window was dirty
and she saw fresh smudge marks consistent with fingerprints. A.W. also testified that
defendant threw rocks at the window and called for L.S., unaware that she had moved
out. Defendant’s presence at what he believed was the victim’s apartment, his repeated
attempts to make contact with her and his possession of tools to commit murder speak to
more than a mere preparation to commit murder, and we reject his contrary argument.
                            2)     Morales Decision
       The parties disagree whether the decision in Morales is analogous and given their
focus on the case in the trial court and on review, we address it. The defendant in
Morales had a history of heavy drinking (Morales, supra, 5 Cal.App.4th at p. 920) and,
on the day of the crime, he told his estranged wife over the phone that he was “‘going to
get’” her boyfriend (id. at p. 921). Shortly thereafter, the defendant showed up at his
estranged wife’s house, pointed a gun in her face and told her, “‘I am going—I am going

                                            16.
to go get your boyfriend. Then I am going to come back for you.’” (Ibid.) Her
boyfriend called during this time, and she warned him that the defendant had a gun and
was coming to his house. (Ibid.) After the defendant left in his vehicle, his estranged
wife called the police. (Ibid.)
       An officer responded to the area where the victim lived, spotted what was later
confirmed to be the defendant’s vehicle parked on the street, and warned the victim, who
was standing on his front porch, to get inside his house. (Morales, supra, 5 Cal.App.4th
at p. 921.) After a second officer arrived, the defendant was found hiding in an alcove on
the porch “behind a garbage can in ‘kind of a catcher’s crouch’ with his hand in front of
his groin.” (Id. at pp. 921–922.) The defendant was approximately three or four feet
away from where the victim had been standing on the porch and, from his location, he
was able to see anyone leaving the house. (Id. at p. 922.) He had a gun inside his
clothing on the underside of his upper arm, positioned to slide, barrel down, toward his
hand when he dropped his arm. (Ibid.)
       Relying on Miller, addressed ante, the defendant challenged the sufficiency of the
evidence supporting his conviction for attempted premeditated murder. (Morales, supra,
5 Cal.App.4th at pp. 925–926.) He claimed that, one, given his level of intoxication,
“any intent to kill … was ‘skewed’” and, two, “the evidence was insufficient as a matter
of law to justify findings that [the] defendant committed the requisite ‘direct but
ineffectual act’ towards killing [the victim], he had engaged in more than mere
preparation, or that he would have committed a murder if the police had not found him.”
(Id. at p. 925.)
       The appellate court distinguished Miller, which, as discussed, involved the
presence of a third party constable during the alleged crime, and rejected the claim.
(Morales, supra, 5 Cal.App.4th at p. 926.) The court concluded that in light of the
evidence that the defendant threatened to get the victim, subsequently pointed the gun at
his estranged wife while threatening to get her and the victim, drove to the victim’s

                                             17.
house, and hid three or four feet from the door, there was sufficient evidence to support
intent to kill, notwithstanding the defendant’s intoxication. (Ibid.) The court further
concluded that this evidence was sufficient to support the jury’s finding that the
defendant’s action went beyond mere preparation. (Id. at pp. 926–927.)
       Here, the People take the position that the facts of Morales are virtually
indistinguishable from the facts in this case while defendant contends they are markedly
different. We agree with the People that the facts in Morales are materially similar to
those here, but “attempt jurisprudence calls for a pragmatic, case-specific approach .…”
(Garton, supra, 4 Cal.5th at p. 511.) Thus, Morales does not purport to establish a
bright-line rule.
                                   a)     Physical Distance
       The crux of defendant’s argument that Morales is inapt is his physical distance
from the apartment while hiding in the car and his possession of a knife, in contrast with
Morales’s location three to four feet from the victim’s door armed with a gun, which
would have allowed Morales to kill the victim from a distance. Defendant places too
much emphasis on these factors. First, although defendant was located by police hiding
in his car in the parking lot, there is evidence that he spent some time lurking around the
first floor grounds outside the apartment and on the second floor at the door and bedroom
window of the apartment. That he was found in his car may well have been attributable
to nothing more than the arrival of police. Even from his car, however, defendant was
positioned to see if L.S. left the apartment, allowing him the opportunity to surprise and
attack her. As such, we are not persuaded by defendant’s attempt to distinguish Morales
on the basis that police located Morales within feet of the victim’s door versus in the
backseat of a car parked some distance away, but with a direct sightline to the door.
       We note that in People v. Lopez, this court recently addressed temporal proximity
in the context of a substantial evidence challenge to an attempted robbery conviction.
(People v. Lopez (2020) 46 Cal.App.5th 505, 514, review granted July 15, 2020, S261747

                                            18.
(Lopez).) Police, aware of a gang-related plan to commit home invasion robbery (id. at
p. 510), interrupted the gang’s plan by initiating a stop of a vehicle occupied by the
defendant and four other men as they approached the targeted neighborhood (id. at
p. 513). The defendant argued on appeal that he did not commit attempted robbery
because he was not yet close enough to the targeted residences. (Id. at p. 516.)
       The panel in Lopez rejected the argument, explaining that the vehicle was on
course to reach the targeted residences within seconds to minutes and was only thwarted
by virtue of police intervention. (Lopez, supra, 46 Cal.App.5th at p. 518, review
granted.) The court concluded, “The particular facts and circumstances of this case
‘would lead a reasonable person to “believe a crime [was] about to be consummated
absent an intervening force”—and thus that “the attempt [was] underway”’ when the
police interceded.” (Id. at pp. 518–519, quoting Decker, supra, 41 Cal.4th at p. 9.) We
agree with the reasoning in Lopez, and reiterate that here, defendant was already on the
premises of the targeted apartment before his plans, too, were interrupted by the arrival of
police.5


5       Defendant does not argue that the California Supreme Court’s decision in Garton
is factually analogous, but the decision bears mention because the parties address it on
appeal and the Lopez court distinguished it in rendering its decision. In Garton, the court
was tasked with determining whether the trial court had jurisdiction over a charge of
conspiracy to commit murder in Oregon. (Garton, supra, 4 Cal.5th at p. 510.) Based on
a jurisdictional rule that had been overruled prospectively and, therefore, still applied in
the case, the court considered “whether [the defendant’s] acts within California’s borders
independently constituted an attempt to commit murder [in Oregon].” (Ibid.)
        The defendant in Garton planned the murder of his paramour’s husband in detail,
he planned to be personally involved in committing the murder, and he drove toward
Oregon from California with a car full of weapons and other gear. (Garton, supra, 4
Cal.5th at p. 511.) However, the court concluded that the defendant’s “actions in
California did not occur in close proximity to the victim or to the anticipated site of the
murder in the Portland area. While in California, [the defendant] could not ‘enter[]’ the
murder scene [citation], ‘hid[e] in a position that would give him a clear shot’ [citation],
or even ‘go[] to the general vicinity’ of the planned murder scene [citation].” (Id. at
p. 512.) On each of these points, the facts in this case are materially different.


                                                19.
                            b)     Weapon Type
       Nor are we persuaded that the distinction between the two types of weapons is of
any significance. Defendant had a large butcher knife with him, along with duct tape
capable of restraining L.S. and silencing her. We do not share defendant’s view that
these items, gathered together and transported in the middle of the night to the residence
of an ex-partner with an order of protection against him, consist of nothing more than
“innocent household” items. The jury was well entitled to infer that defendant’s actions,
coupled with his clear intent, went beyond mere preparation for the crime. Based on the
foregoing, we find that defendant’s conviction for attempted murder is supported by
substantial evidence and the trial court did not err in denying his section 1118.1 motion
for judgment of acquittal made at the close of the People’s case-in-chief.
              2.     Premeditation Finding
       Defendant also claims that even if we conclude his attempted murder conviction is
supported by substantial evidence, the evidence is insufficient to support the jury’s
finding that he acted willfully, deliberately and with premeditation. Relying on his
emotional state and professions of tiredness during his interrogation by Officer Glenn, he
contends that “[his] mental state … precluded the ‘careful thought’ and ‘weighing of
considerations for and against the proposed actions’ [citation] essential for a finding of
premeditation and deliberation.” Again, we disagree.
       As a threshold matter, the prosecutor and defense counsel examined Officer Glenn
about select statements defendant made during his interrogation on May 9, 2017, but
some of the statements defendant cites in his argument, including that he lost both of his
parents recently, he was tired, and it was “‘too much’” were not among them. To the
contrary, the jury heard that defendant was upset because he believed L.S. cheated on
him during their entire relationship, that he admitted threatening to kill L.S. on May 1,
2017, and that the items in the bag were his and he brought them with him that night “to
have a discussion with [L.S.].”

                                             20.
       In this case, there was ample evidence supporting each of the Anderson factors.
(Anderson, supra, 70 Cal.2d at pp. 26–27.) Regarding motive, defendant and L.S. had
been engaged to be married before breaking up and he was upset because he believed she
was unfaithful during their relationship. Despite his awareness of a restraining order
prohibiting him from contacting her, defendant called and texted L.S. repeatedly,
sometimes in rapid succession, and he showed up at the apartment complex where she
lived repeatedly, sometimes sleeping outside. L.S. testified that defendant’s behavior
escalated between January and May 2017, and he persisted in attempting to contact L.S.
even while leading police on a high speed chase on May 1, 2017, telling her he was upset
she called the police and that he did not care. The jury could reasonably infer from the
evidence that defendant was obsessed with L.S., he was unwilling to accept the end of
their relationship and his stalking behavior was escalating despite law enforcement
involvement, evidencing a motive to kill in the face of her rejection.
       With respect to planning and the nature of the attempted killing, as previously
discussed, defendant drove to what he believed was still L.S.’s residence in the middle of
the night with a bag of items described by Officer Glenn during trial as consistent with
murder, he attempted to make contact with L.S., A.W. feared he was about to break in,
and he lurked around the premises until police found him hiding in his car, which had a
direct sightline to the apartment. Moreover, defendant admitted to Glenn that he had
threatened to kill L.S. and he brought the items to L.S.’s apartment that night to “have a
discussion with [her].” This evidence indicates a manner of attempted killing “‘so
particular and exacting that the defendant must have intentionally killed according to a
“preconceived design” .…’” (People v. Brooks (2017) 3 Cal.5th 1, 59, quoting Anderson,
supra, 70 Cal.2d at pp. 26–27; accord, People v. Halvorsen, supra, 42 Cal.4th at pp. 419–
420.) Although defendant also told Glenn that he would never harm L.S., the jury was
not required to accept that statement and disregard the other evidence. In sum, the jury’s



                                            21.
finding that defendant acted willfully, deliberately and with premeditation is supported by
substantial evidence and we reject his contrary argument.
II.    Instructional Error
       A.      Procedural Background
       Defendant was charged in counts 4 and 5 with violating a protective order under
section 166, subdivision (c)(4). The parties agree, as do we, that the trial court erred
when it instructed the jury on these counts. Relevant to defendant’s claim,
subdivision (c)(1)(A) of section 166 provides: “Notwithstanding paragraph (4) of
subdivision (a), a willful and knowing violation of a protective order or stay-away court
order described as follows shall constitute contempt of court, a misdemeanor, punishable
by imprisonment in a county jail for not more than one year, by a fine of not more than
one thousand dollars ($1,000), or by both that imprisonment and fine: [¶] … An order
issued pursuant to Section 136.2.”6 Subdivision (c)(4) of section 166, at issue here,
provides: “A second or subsequent conviction for a violation of an order described in
paragraph (1) occurring within seven years of a prior conviction for a violation of any of
those orders and involving an act of violence or ‘a credible threat’ of violence, as
provided in subdivision (c) of Section 139, is punishable by imprisonment in a county jail
not to exceed one year, or in the state prison for 16 months or two or three years.”
       The trial court instructed the jury pursuant to CALCRIM No. 2701, the pattern
instruction for violating a protective order or stay-away order under subdivision (c)(1) of
section 166, as follows:




6       Section 166, subdivision (a)(4), provides: “Except as provided in
subdivisions (b), (c), and (d), a person guilty of … the following contempt[] of court is
guilty of a misdemeanor: [¶] … [¶] … Willful disobedience of the terms as written of
any process or court order or out-of-state court order, lawfully issued by a court,
including orders pending trial.”


                                                22.
                 “The defendant is charged in Counts 4 and 5 with violating a court
         order, in violation of Penal Code Section 166[, subdivision ](c)(4). [¶] To
         prove that the defendant is guilty of this crime, the People must prove that:

               “One, a court lawfully issued a written order that the defendant have
         no contact with [L.S.];

               “Two, the court order was a protective order issued in a post-
         criminal proceeding involving domestic violence;

                “Three, the defendant knew of the court order;

                “Four, the defendant had the ability to follow the court order;

                “And five, the defendant willfully violated the court order.

                “Someone commits an act willfully when he or she does it willingly
         or on purpose.

                 “‘Domestic violence’ means abuse committed against an adult who
         is a person who dated or is dating the defendant.

                “‘Abuse’ means intentionally or recklessly causing or attempting to
         cause bodily injury or placing another person in reasonable fear of
         imminent serious bodily injury to himself or herself or to someone else.”
         However, the court failed to instruct the jury that it had to find conduct involving
an act of violence or a credible threat of violence, pursuant to CALCRIM No. 2703, the
pattern instruction applicable to subdivision (c)(4) of section 166. The court also failed
to instruct the jury that it had to find whether the violation occurred within seven years of
a prior conviction for violating a protective or stay-away order. (CALCRIM Nos. 3100–
3103.)
         B.     Standard of Review
         “A claim of instructional error is reviewed de novo.” (People v. Mitchell (2019) 7
Cal.5th 561, 579; accord, People v. Rivera (2019) 7 Cal.5th 306, 326.) Relevant to the
claim raised in this case, “[t]he trial court has a sua sponte duty to instruct the jury on the
essential elements of the charged offense.” (People v. Merritt (2017) 2 Cal.5th 819, 824;
accord, People v. Mil (2012) 53 Cal.4th 400, 409.) When the trial court fails to instruct


                                              23.
the jury on an element of the offense, the error is of federal constitutional magnitude
“because it violates the defendant’s due process and Sixth Amendment rights to have a
jury adjudicate guilt beyond a reasonable doubt.” (People v. Banks (2014) 59 Cal.4th
1113, 1153, abrogated on another ground in People v. Scott (2015) 61 Cal.4th 363, 391,
fn. 3; accord, People v. Merritt, supra, at p. 824; see Alleyne v. United States (2013) 570
U.S. 99, 103 (plurality opinion) [“Any fact that, by law, increases the penalty for a crime
is an ‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.”].) “[T]he more elements that are omitted, the less likely it is that the error is
harmless, but so long as the error does not vitiate all of the jury’s findings, it is amenable
to harmless error analysis.” (People v. Merritt, supra, at p. 829; accord, People v. Mil,
supra, at pp. 413–414.) Under the test set forth in Chapman, “[s]uch error is ‘harmless
only if, after conducting a thorough review of the record, the court determines beyond a
reasonable doubt that the jury verdict would have been the same absent the error.’”
(People v. Banks, supra, at p. 1153; accord, People v. Merritt, supra, at p. 831.)
       C.     Analysis
              1.      Technical Error in Verdict Form
       As previously stated, the People agree with defendant that under section 166,
subdivision (c)(4), the trial court erred when it failed to instruct the jury it had to
determine whether defendant suffered a prior qualifying conviction and whether his
conduct involved an act of violence or a credible threat of violence. However, defendant
also argues that he is entitled to reversal because the jury returned verdicts convicting
him of violating section 136.2. The People do not concede this irregularity with the
verdict forms on counts 4 and 5 rises to the level of reversible error and we agree.
       “[T]echnical defects in a verdict may be disregarded if the jury’s intent to convict
of a specified offense within the charges is unmistakably clear, and the accused’s
substantial rights suffered no prejudice.” (People v. Webster (1991) 54 Cal.3d 411, 447;
accord, People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) It is clear that the jury

                                              24.
intended to convict defendant of felony violation of a protective order, as charged, and
the reference to section 136.2, which governs types of orders a court may issue to protect
a victim or witness, was an inadvertent technical error.7 This error, therefore, does not
provide a ground for reversal on counts 4 and 5.
               2.      Instructional Error Prejudicial
       Turning to the trial court’s instructional error, although the parties do not engage
in a separate analysis of the issue, we must determine whether the error was prejudicial.
(People v. Merritt, supra, 2 Cal.5th at p. 829.) We first consider conduct involving an act
of violence or a credible threat of violence, as that result is mixed. This case did not
involve an act of violence, but the jury heard evidence that defendant threatened to kill
L.S. on May 1, 2017, and the jury convicted defendant of stalking L.S. and making
criminal threats against her on that date.8
       The term “credible threat” within the meaning of section 166, subdivision (c)(4), is
defined by section 139, subdivision (c), which provides, “As used in this section, ‘a

7       The information alleges that defendant “did willfully and unlawfully commit
contempt of court by knowingly violating a protective order or stay away court order
issued pursuant to section 136.2, in a pending criminal proceeding involving domestic
violence, to wit: in Kern County Superior Court case number BM898109A, as defined in
section 13700, or issued as a condition of probation after a conviction in a criminal
proceeding involving domestic violence, as defined in section 13700, or that is an order
described in [section] 166[, subdivision ](c)(3) having been previously convicted of a
violation of Penal Code section 166[, subdivision ](c)(1) within seven (7) years and said
contempt involving an act of violence or ‘a credible threat’ of violence, as provided in
subdivision (c) and (d) of section 139, in violation of Penal Code section 166[,
subdivision ](c)(4), a felony.” (Full capitalization omitted.)
8       Section 646.9, subdivision (a), which proscribes stalking, provides, “Any person
who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses
another person and who makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her immediate family is guilty
of the crime of stalking .…” The jury found defendant violated subdivision (b) of
section 646.9, which provides greater punishment for “[a]ny person who violates
subdivision (a) when there is a temporary restraining order, injunction, or any other court
order in effect prohibiting the behavior described in subdivision (a) against the same
party….”


                                                 25.
credible threat’ is a threat made with the intent and the apparent ability to carry out the
threat so as to cause the target of the threat to reasonably fear for his or her safety or the
safety of his or her immediate family.” Stalking includes making a credible threat as an
element (People v. Itehua (2014) 227 Cal.App.4th 356, 360; accord, People v. Ewing
(1999) 76 Cal.App.4th 199, 210), and making criminal threats includes threatening to
commit a crime involving death or great bodily injury as an element (People v. Fruits
(2016) 247 Cal.App.4th 188, 203–204, fn. 8, citing People v. Toledo (2001) 26 Cal.4th
221, 227–228). Count 4 relates to violation of a protective order on May 1, 2017, and, as
to that count, by way of also convicting defendant of stalking and making criminal threats
on May 1, 2017, the jury made “essential findings” that render the trial court’s failure to
instruct the jury it had to find a credible threat of violence harmless beyond a reasonable
doubt.9 (People v. Mil, supra, 53 Cal.4th at p. 416.) In this case, “[no] rational fact
finder could have come to the opposite conclusion.” (Id. at p. 418.) However, count 5
relates to violation of a protective order on May 9, 2017, and the prosecutor presented no
evidence that defendant committed an act of violence or made a credible threat of
violence against L.S. on that date. Therefore, the failure to instruct on this element is not
harmless as to count 5.

        Section 422, which proscribes making criminal threats, is violated when a
defendant “willfully threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that the statement, made verbally,
in writing, or by means of an electronic communication device, is to be taken as a threat,
even if there is no intent of actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an immediate
prospect of execution of the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family’s safety….”
(§ 422, subd. (a).)
9       In contrast with violation of a protective order under section 166,
subdivision (c)(4), neither stalking under section 646.9 nor making criminal threats under
section 422 requires proof that the defendant actually intended to carry out the threat, but
on the facts of this case, that distinction does not affect the outcome of the prejudice
analysis. (§§ 139, subd. (c), 646.9, subd. (g), 422, subd. (a).)


                                                26.
       Turning to the prior conviction element, the probation report reflects that in 2012,
defendant was charged with violating section 166, subdivision (c)(1), and sentenced to a
jail term. However, the prosecutor did not present any evidence of this prior conviction.
Therefore, the trial court’s failure to instruct on this issue may not be deemed harmless.
               3.      Reduction of Felony Convictions to Misdemeanors
       This leaves the remedy. In his opening brief, defendant requests reversal in light
of the trial court’s instructional error. Citing to section 1181, subdivision 6, and
section 1260, the People contend that we may modify the verdicts on counts 4 and 5 from
the greater offenses under subdivision (c)(4) of section 166 to the lesser included offenses
under subdivision (c)(1) of section 166.10 In reply, defendant requests either reversal or
reduction to misdemeanors.
       As the California Supreme Court has explained, “[u]nder section 1181,
subdivision 6, a jury verdict not supported by the evidence may be modified if the record
establishes the defendant’s guilt of a lesser included offense. The requirement that the
lesser offense be included in the greater ‘is based upon due process considerations: A
criminal defendant must be given fair notice of the charges against him in order that he
may have a reasonable opportunity properly to prepare a defense and avoid unfair


10     Section 1181, subdivision 6, provides, “When a verdict has been rendered or a
finding made against the defendant, the court may, upon his application, grant a new trial
… [¶] … [¶] … [w]hen the verdict or finding is contrary to law or evidence, but if the
evidence shows the defendant to be not guilty of the degree of the crime of which he was
convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the
court may modify the verdict, finding or judgment accordingly without granting or
ordering a new trial, and this power shall extend to any court to which the cause may be
appealed[.]”
       Section 1260 provides, “The court may reverse, affirm, or modify a judgment or
order appealed from, or reduce the degree of the offense or attempted offense or the
punishment imposed, and may set aside, affirm, or modify any or all of the proceedings
subsequent to, or dependent upon, such judgment or order, and may, if proper, order a
new trial and may, if proper, remand the cause to the trial court for such further
proceedings as may be just under the circumstances.”


                                                27.
surprise at trial.’ [Citation.] The requirement also preserves the jury’s role as the finder
of fact. The modification permitted by section 1181, subdivision 6 ‘merely brings the
jury’s verdict in line with the evidence presented at trial.’ [Citation.] The reviewing
court corrects the verdict ‘“not by finding or changing any fact, but by applying the
established law to the existing facts as found by the jury.”’” (People v. Robinson (2016)
63 Cal.4th 200, 206–207, fn. omitted.)
       “To ascertain whether one crime is necessarily included in another, courts may
look either to the accusatory pleading or the statutory elements of the crimes. When, as
here, the accusatory pleading incorporates the statutory definition of the charged offense
without referring to the particular facts, a reviewing court must rely on the statutory
elements to determine if there is a lesser included offense. [Citations.] ‘The elements
test is satisfied if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, such that all legal elements of the lesser offense are also
elements of the greater. [Citation.] In other words, “‘[i]f a crime cannot be committed
without also necessarily committing a lesser offense, the latter is a lesser included offense
within the former.’”’” (People v. Robinson, supra, 63 Cal.4th at p. 207, fn. omitted.)
       Our high court has drawn distinctions between substantive offenses,
enhancements, and penalty provisions (e.g., People v. Brookfield (2009) 47 Cal.4th 583;
People v. Anderson (2009) 47 Cal.4th 92, 101; Robert L. v. Superior Court (2003) 30
Cal.4th 894, 898–899; People v. Acosta (2002) 29 Cal.4th 105, 118–119), while “also
recogniz[ing] that the distinction is not always relevant[]” (People v. Cross (2015) 61
Cal.4th 164, 178). In this case, there is no dispute that the trial court properly instructed
the jury on the elements of violating a protective order under subdivision (c)(1) of
section 166, which is a misdemeanor offense, or that the jury’s findings in this regard are
supported by sufficient evidence. However, violation of subdivision (c)(4) of
section 166, which is a wobbler offense and under which defendant was charged with and
sentenced for a felony, requires proof of an additional two facts: a prior qualifying

                                              28.
conviction within seven years and conduct involving an act of violence or a credible
threat of violence. The parties agree that in this case, we may modify the verdict on
counts 4 and 5 to reflect misdemeanor convictions for violating section 166,
subdivision (c)(1).
       The Court of Appeal considered a similar situation in People v. Torres (2011) 198
Cal.App.4th 1131 (Torres) and we find that decision instructive. In Torres, the court
considered the defendant’s conviction for dissuading a witness in violation of
section 136.1 (id. at p. 1134), which the court described as “defin[ing] a family of 20
related offenses[; t]here are five underlying offenses that are wobblers alternately
punishable as misdemeanors or felonies” (id. at p. 1137, fn. omitted). Subdivision (a) of
section 136.1 provides that preventing or dissuading a witness, or attempting to prevent
or dissuade a witness, “from attending or giving testimony at any trial, proceeding, or
inquiry authorized by law[]” is punishable as a misdemeanor or a felony.11



11     Section 136.1 provides in full:
        “(a) Except as provided in subdivision (c), any 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.
              “(2) Knowingly 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.
               “(3) For purposes of this section, evidence that the defendant was a
       family member who interceded in an effort to protect the witness or victim shall
       create a presumption that the act was without malice.
        “(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:


                                               29.
Subdivision (b) of section 136.1, also punishable as a misdemeanor or a felony, more
specifically pertains to attempting to prevent or dissuade a crime victim or witness to a
crime under certain enumerated circumstances. Finally, subdivision (c) of section 136.1,
which is a felony punishable by two, three, or four years in state prison, applies to those
who violate either subdivision (a) or subdivision (b) under specified circumstances.


               “(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, information, probation or parole
       violation to be sought and prosecuted, and assisting in the prosecution thereof.
              “(3) Arresting or causing or seeking the arrest of any person in
       connection with that victimization.
        “(c) Every person doing any of the acts described in subdivision (a) or (b)
knowingly and maliciously under any one or more of the following circumstances, is
guilty of a felony punishable by imprisonment in the state prison for two, three, or four
years under any of the following circumstances:
               “(1) Where the act is accompanied by force or by an express or implied
       threat of force or violence, upon a witness or victim or any third person or the
       property of any victim, witness, or any third person.
               “(2)    Where the act is in furtherance of a conspiracy.
               “(3) Where the act is committed by any person who has been convicted
       of any violation of this section, any predecessor law hereto or any federal statute
       or statute of any other state which, if the act prosecuted was committed in this
       state, would be a violation of this section.
               “(4) Where the act is committed by any person for pecuniary gain or for
       any other consideration acting upon the request of any other person. All parties to
       such a transaction are guilty of a felony.
        “(d) Every person attempting the commission of any act described in
subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success
or failure of the attempt. The fact that no person was injured physically, or in fact
intimidated, shall be no defense against any prosecution under this section.
        “(e) Nothing in this section precludes the imposition of an enhancement for
great bodily injury where the injury inflicted is significant or substantial.
       “(f)    The use of force during the commission of any offense described in
subdivision (c) shall be considered a circumstance in aggravation of the crime in
imposing a term of imprisonment under subdivision (b) of Section 1170.”


                                                30.
       The jury in Torres convicted the defendant of violating section 136.1, as
previously stated, and the trial court sentenced him to the upper term under
subdivision (c)(1) of section 136.1. (Torres, supra, 198 Cal.App.4th at pp. 1134–1135.)
However, the jury was instructed on subdivision (b)(1) of section 136.1, but not on
finding “the existence of any of the subdivision (c) circumstances that would make the
crime a straight felony.” (Torres, supra, at p. 1142.) The court stated,
“Subdivision (c)(1) must be recognized as describing a greater offense with its own
alternative and separate sentencing scheme.” (Id. at p. 1147.) Concluding “[i]t is
elementary that a defendant should not be punished for a crime of which he was not
convicted” (id. at p. 1148), the court accepted the parties’ concession that modification of
the verdict to reflect conviction under subdivision (b)(1) of section 136.1 was the
appropriate remedy (Torres, supra, at p. 1149). An error of the same type occurred here
and we note that section 136.1 and section 166 are materially similar in structure. As in
Torres, the parties concede that modification of the verdicts is appropriate to reflect the
jury’s finding that defendant violated section 166, subdivision (c)(1), and we accept that
concession. (Torres, supra, at p. 1149.)
III.   Error in Abstract of Judgment
       Finally, we have the authority to correct clerical errors on our own motion.
(§ 1260; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d
702, 705; People v. Amaya (2015) 239 Cal.App.4th 379, 385.) The abstract of judgment
in this case incorrectly reflects that defendant’s one-year sentence on count 2 is the upper
term and a full, consecutive term rather than one-third of the middle term. The trial court
shall, in the course of issuing an amended abstract of judgment following resentencing on
counts 4 and 5, correct this clerical error to reflect that defendant’s one-year sentence on
count 2 is one-third of the middle term.




                                             31.
                                      DISPOSITION
       On counts 4 and 5, defendant’s felony convictions for violating a protective order
under subdivision (c)(4) of section 166 are modified to reflect misdemeanor convictions
for violating a protective order under subdivision (c)(1) of section 166, and the matter is
remanded for resentencing. Following resentencing, the trial court shall issue and
forward to the appropriate authorities an amended abstract of judgment reflecting, one,
the modification to counts 4 and 5 and, two, that the one-year sentence on count 2 is one-
third of the middle term. Except as modified, the judgment is affirmed.




                                                                     MEEHAN, Acting P.J.
WE CONCUR:



SNAUFFER, J.



DE SANTOS, J.




                                            32.
