Filed 7/8/13 P. v. Borja CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B244589

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. B123581)
         v.

RODRIGO BORJA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Raul A. Sahagun, Judge. Affirmed.


         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       Rodrigo Borja (Borja) was convicted of raping his niece when she was
unconscious. He now challenges the sufficiency of the evidence supporting a second
conviction that he conveyed a threatening message to dissuade his niece from testifying
against him at trial. (Pen. Code, § 136.1, subd. (a)(1).)1 We find no error and affirm.
                                          FACTS
       Defendant Borja is the maternal uncle of Jane Doe. When Doe was young, Borja
lived in her home. Later, she stayed for a month at his trailer home when she moved to
California. They have never had a romantic relationship.
       Doe turned 25 on October 30, 2011, and celebrated by meeting friends for dinner.
Borja was the “designated driver” and drank one beer at the birthday party. Doe had “at
least five” drinks, including a Long Island iced tea, an apple martini, a soft drink with
two shots of alcohol, plus another shot. After drinking the last shot, she went to the
dance floor and danced a little, but not with Borja. “After that I blacked out. I don‟t
remember anything.” She does not recall leaving the restaurant.
       A friend nicknamed “Tita” traveled to the birthday party with Doe and Borja. Tita
had one or two margaritas. She saw Doe consume multiple drinks: at the end of the
evening, Doe “was fairly drunk because she couldn‟t keep her balance.” Doe had to be
helped to the car, was stammering, and fell. Borja showed no sign of intoxication, and
was able to drive and communicate. Borja drove Tita home. Tita described Doe as
“fairly unconscious” during the ride. Borja and Doe drove off together after Tita got out.
       Doe has no memory of driving to or entering Borja‟s trailer. Instead, “the next
thing I remember was waking up to him penetrating me. . . . I still felt like drunk when I
woke up. I felt him probably like three, four times thrusting inside of me.” Specifically,
she felt his penis inside her vagina. When Doe uttered the name of a male friend, Borja
got off of her, unlatched the top bunk bed in his trailer, and pretended to be asleep. Doe‟s
underwear was rolled halfway down her thighs, her dress was pushed up, and her vagina
was exposed.

1      All undesignated statutory references in this opinion are to the Penal Code.


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       Doe arose and asked Borja for her keys, telephone and wallet. He got down from
the bunk bed and handed them to her, telling her she was too drunk to drive. He did not
prevent her from leaving. She walked outside to her car and sent a text message to her
friend Tita. It was just before five o‟clock in the morning. Doe did not know why she
was at Borja‟s trailer and wanted to make sure he had taken Tita home, since Doe did not
remember leaving the restaurant.
       Doe telephoned a friend named William because she was scared of Borja and
wanted comfort. She could not stop crying, and cried even more when William asked if
someone had hurt her. She drove to William‟s house, but was too embarrassed to tell him
what happened. She asked to take a shower because she “felt dirty.” In the shower, she
“overdid it ” and cleaned her vagina with water and soap for 10 minutes while crying.
Afterward, she told William what happened and fell asleep.
       On October 31, Tita‟s telephone showed that Doe sent a text message early in the
morning. When they spoke, Doe sounded emotional, and “seemed scared and confused,”
saying that she awoke to find Borja on top of her and believed that he raped her. After
Tita finished work, she and Doe went to a police station. A deputy took Doe to a hospital
for an examination. A nurse asked questions, examined her whole body, and took photos
of her genitals. Doe complained of genital soreness and had a “disruption of the skin
surface.” The nurse found bruises on the inside of Doe‟s thigh. Swabs were taken,
sealed and given to law enforcement officers.
       A criminalist analyzed the swabs taken during Doe‟s medical examination. Semen
was detected on samples taken from her vulva, vagina, anus, and cervix. A DNA
analysis was performed. The criminalist testified that the DNA in the samples “match[ ]
the profile of Rodrigo Borja.”
       Criminal charges were filed against Borja. In February 2012, while the case was
pending, Doe‟s mother received a call from Borja, who was in jail. She testified that
using some “kind of codes, he let me know to tell my daughter not to go to court.” He
instructed his sister to tell Doe (“this doll”), “not to go to the party. And not to accept the



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invitations. Because if she attended the party, and if she signed or accepted the
invitations, she‟s going to end up in a box.”
       Borja‟s call from jail was recorded, and a transcript was read to the jury. Borja
says that the criminal charges against him were dismissed then refiled. He asks his sister
to “communicate with the doll. Say that if an invitation is received for the party, say do
not go because they‟re going to want to set up a room. The attorney talked to me about
that.” His sister inquires, “which doll, my doll?” and Borja replies, “Yes.” He reiterates
to not accept invitations “to go that day of the party . . . because my attorney told me
that‟s the only thing they‟re waiting for him to arrive.” He adds something
incomprehensible about “doll in a box.” Borja‟s sister asks whether he will stay in a
“warehouse” here, or be sent to another “warehouse far from here?” Borja answers,
“Well, that‟s why I tell you, when by that day of the party, if he doesn‟t go . . . then the
matter is over and they will again throw everything . . . and they will leave me.”
       Borja‟s sister testified that she had never before (or since) had occasion to discuss
“dolls” with her brother, or “invitations to parties.” She believed he was using code to
refer to Doe and was concerned about his “doll in a box” remark. Though Borja used
“he” during the conversation, she understood it to mean “she.”2 She interpreted the
conversation as a demand that Doe not come to court, adding “I was afraid and . . . I
understood if she went to court that she would end up in jail also.”
       Doe‟s mother informed Doe about the conversation with Borja. Doe, in turn,
informed the investigating detective about Borja‟s call. The detective explained that he
serves subpoenas on witnesses, which are signed to show personal service to ensure their
appearance at trial. If the witness fails to appear, the case may get dismissed.
                               PROCEDURAL HISTORY
       Borja was charged with rape of an unconscious person (§ 261) in Count 1 and
dissuading a witness from testifying (§ 136.1) in Count 2. He pleaded not guilty. Trial
was by jury. He was convicted on both counts. Probation was denied and Borja was

2      She testified that Borja has poor grammar.


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sentenced to the mid-term of six years in state prison on Count 1 and the mid-term of two
years on Count 2. The sentences are concurrent.
                                       DISCUSSION
       Borja was convicted of violating section 136.1, subdivision (a)(1), which applies
to anyone who “knowingly and maliciously prevents or dissuades any witness or victim
from attending or giving testimony at any trial, proceeding, or inquiry authorized by
law.” Subdivision (a)(2) prohibits knowing and malicious attempts to dissuade a witness
or victim from testifying. Both crimes carry the same penalty. To “dissuade” means to
advise or discourage a person against an action. (Webster‟s 3d New Internat. Dict.
Unabridged (1981) p. 657.)
       To obtain a conviction under section 136.1, the prosecution must prove that the
“defendant‟s acts or statements are intended to affect or influence a potential witness‟s or
victim‟s testimony or acts . . . .” (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.)
Borja argues that there is insufficient evidence to sustain a conviction for dissuading a
witness or victim. He asserts that “there was no evidence that the third party [his sister]
conveyed the threat, or that the victim was even momentarily dissuaded.”
       Borja‟s description of the evidence is incorrect. First, there is evidence that his
sister conveyed the threat. She testified, at page 119 of the reporter‟s transcript, that
“After the conversation [with Borja], I called my daughter about what we had talked
about. . . . Because the conversation that we had with Mr. Borja, my brother, I thought
that . . . he was very firm when he was telling me. And since he was talking in code, I
thought he was referring to my daughter.” Doe testified that she spoke to her mother
about the telephone call from Borja.
       Second, there is evidence that the victim was intimidated by Borja‟s demand.
Instead of ignoring Borja‟s call, or treating it as a joke, she reported Borja‟s conduct to
the police. The jury could reasonably infer that Doe‟s report to the police shows that she
was dissuaded from (i.e., advised against) coming to court. Certainly, Borja intended to
affect Doe by making the call, in hopes that the charges against him would be dismissed
if Doe failed to appear at trial. In short, Borja‟s words support a reasonable inference that

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he sought to induce Doe to withhold testimony, which completes the crime. (People v.
Thomas (1978) 83 Cal.App.3d 511, 514.)
       Borja relies on People v. Foster (2007) 155 Cal.App.4th 331 (Foster). In Foster,
the defendant assaulted his girlfriend. While jailed, he called a friend to say that his
girlfriend‟s appearance in court was „“not a good idea”‟ and directed the friend to ask the
victim „“not to tell”‟ on him. He also said, „“I hope she don‟t [sic] show up to none of
the courts . . . because, she‟s going to get into trouble,”‟ suggesting that the victim would
be arrested if she appeared in court to testify against him. The friend replied, „“Okay.
I‟ll tell her,”‟ but decided not to contact the victim. The defendant‟s recorded jailhouse
calls were played for the jury. (Id. at p. 334.)
       The appellate court in Foster concluded that the defendant was properly convicted
of attempting to dissuade a witness. The court observed that section 136.1 does not
require that the defendant personally deliver the message to the witness. (Foster, supra,
155 Cal.App.4th at p. 335.) Foster put his plan into action by voicing the threat he
wanted his friend to convey. He completed the attempt even though his friend did not
follow through and inform the victim about the threat: “Foster did everything necessary
to ensure that his threat was carried out.” (Id. at p. 336.)
       Here, Borja instructed a third party to tell the victim “not to go to the party”
because if she attended the party, “she‟s going to end up in a box.” This was Doe‟s
mother‟s interpretation of the threat, and she was “afraid” for her daughter. Borja‟s threat
was actually communicated to the victim, to dissuade (i.e., discourage) her from
testifying. Unlike Foster, Borja‟s effort to dissuade was not thwarted by the messenger‟s
failure to cooperate. Instead, the threat reached the victim.
       To secure a conviction under section 136.1, the prosecution need not prove that
the victim or witness changed her testimony or failed to appear in court in response to a
threat. “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.” (§ 136.1, subd. (d), italics

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added.) “The goal of the legislation was to discourage all who attempted to dissuade
witnesses, regardless of the means selected or the success of the attempt.” (Foster, supra,
155 Cal.App.4th at p. 337.)
       Borja complains that the jury instruction given conflated subdivisions (a)(1) and
(a)(2) of section 136.1.3 The instruction was taken from CALJIC No. 7.14. Although the
court read the bracketed portions of CALJIC No. 7.14 that apply to attempts under
subdivision (a)(2), this is not reversible error. The jury found Borja guilty of the
completed offense, which is supported by substantial evidence, so it surely would have
found him equally guilty of an attempt to dissuade. Subdivisions (a)(1) and (a)(2) of
section 136.1 carry the same penalty, so the outcome would not have changed even if
Borja had been charged with violating subdivision (a)(2) instead of (a)(1).




3      The instruction read, “Defendant is accused in Count 2 of having violated section
136.1, subdivision (a)(1) of the Penal Code, a crime. [¶] Every person who knowingly
and maliciously prevents or dissuades or attempts to prevent or dissuade any witness or
victim from: [¶] Attending or giving testimony at any trial, proceeding, or inquiry
authorized by law, is guilty of a violation of Penal Code section 136.1, subdivision (a)(1),
a crime. It is immaterial whether an attempt to prevent or dissuade was successful. [¶]
The fact, if it be the fact, that no person was injured physically, or intimidated, is not a
defense. [¶] In order to prove this crime, each of the following elements must be proved:
[¶] 1. Jane Doe was a victim; [¶] 2. Rodrigo Mondragon Borja, with the specific intent
to do so, dissuaded or attempted to dissuade Jane Doe from attending or giving testimony
at any trial, proceeding, or inquiry authorized by law; [¶] 3. Rodrigo Mondragon Borja
acted knowingly and maliciously.”




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                                   DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                        BOREN, P.J.
We concur:


      CHAVEZ, J.


      FERNS, J.*




__________________________________________________________________
*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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