Filed 4/10/14 P. v. Lopez CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065211
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12600398)
                   v.

OLVIN ROBERTO LOPEZ,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Gabriel Cruz Vivas, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna,
Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Kane, J. and Peña, J.
          Defendant Olvin Roberto Lopez was convicted of domestic crimes against his
wife, Stephanie, and of dissuading her from reporting the crimes. On appeal, he contends
insufficient evidence supported the dissuading conviction because the prosecution failed
to establish he knew Stephanie had tried to report his crimes to the police. We will
affirm.
                                PROCEDURAL SUMMARY
          A jury found defendant guilty of corporal injury to a spouse (Pen. Code, § 273.5,
subd. (a);1 count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), false
imprisonment by violence (§ 236; count 3), and dissuading a witness from reporting a
crime (§ 136.1, subd. (b)(1); count 4). The jury found true a dangerous weapon
allegation connected to count 1 (§ 12022, subd. (b)(1)). The trial court sentenced
defendant to four years in prison.
                                            FACTS
          Defendant and Stephanie had been together for five years and married for a few
months. They lived in a house with their three young children.
          On March 4, 2012, at about 1:00 a.m., Stephanie was watching television with two
of the children. She heard a knock on the side door and saw defendant vomiting on the
driveway. He appeared to be drunk. She unlocked the door for him and went back into
the living room. About five minutes later, defendant entered carrying an open box of
beer. Stephanie told him to put the beer in the kitchen because the children were present.
He said he was not going to do it, so she picked it up. He told her not to touch his beer.
He grabbed the beer from her and put it back on the coffee table. She asked him why he
had not answered his cell phone throughout the day and he told her his battery was dead.
She believed he did not want to answer because he was out drinking with his friends.




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


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       Defendant started dozing off. Stephanie told him to go sleep in the bedroom,
where their one-month-old baby was sleeping. When defendant got on the bed, the baby
started crying. Defendant told Stephanie to come and get the baby. She came in and lay
down with them. Defendant said, “‘I am trying to sleep. Fuck. I can’t sleep in this
fucking house.’” Stephanie told him that if he could be out drinking all night, he should
be able to tolerate the baby’s crying. He told her, “‘Shut the fuck up,’” and punched her
two or three times with a closed fist on her right shoulder. Then he stood up and said,
“‘I’m tired of hearing your shit,’” and he hit her three or four times with a closed fist on
her head and shoulder.
       Defendant walked into the bathroom. When he did, Stephanie walked toward the
kitchen to get her cell phone and call 911. But defendant came out of the bathroom and
approached her before she could reach the kitchen. He told her, “‘You like when you
get—you get happy when you make me mad. You are not going to be happy until I kill
you.’” This statement scared Stephanie. Defendant cornered her and hit her on the head
and shoulders seven or eight times, causing bruising and swelling on her face and eye.
Stephanie pushed him away with a baby walker. He said, “‘You really want to see me
mad,’” and he walked into the kitchen. She ran into the bathroom, closed the door, and
pushed her back against it to hold it closed. She was afraid. Defendant told her to open
the door, and he was able to push it open. When she turned to face him, she saw that he
was holding a metal fork in his hand. He began to attack her with a slicing motion across
the front of his body. She put her hands up to defend herself and he struck her forearms
with the fork. He pushed her into the back of the bathroom and trapped her there, now
attacking her with downward thrusts of the fork. Blood from her wounds dripped onto
the floor.
       The baby started crying in the bedroom, so defendant left and walked to the
bedroom. He returned with the baby in one arm and the fork in the other. He swung the
fork at Stephanie again, but failed to make contact. She said the baby was hungry. He


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told her to do something to quiet the baby, and he let her go into the kitchen to prepare a
bottle. She did and handed the bottle to defendant. He took the bottle and the baby into
the bedroom. At that point, Stephanie picked up her cell phone and left the house
through the side door. She called 911. But before she could say anything, defendant
came out, grabbed the phone, and hung it up. As he was holding the phone, it started to
ring. He looked at the caller’s identification and asked Stephanie why the Reedley Police
were calling. She did not answer him. Defendant took the phone inside and locked the
doors.
         Stephanie went to a neighbor’s house to call the police, but the neighbor did not
have a telephone. She then walked to the local market and called from a pay phone. She
was afraid for her children’s safety because they were alone with defendant in the house.
         At about 3:00 a.m., the 911 dispatch received Stephanie’s call. She reported that
defendant had hit her and stabbed her with a fork. She stated that he had locked her out
and he was still in the house with the children. She said, “I was calling like three times
from my cell phone and he grabbed it from me and he went inside and he locked me out
and then I went to a neighbor’s house but they didn’t have a phone. So I walked over
here to the payphone.”
         Moments later, a police officer responded to the market and found Stephanie
waiting by the pay phone. She was visibly upset and shaken, and she was crying. She
had cuts and scrapes on both forearms, which were bloody. She also had a puncture
wound on her right upper breast. She told the officer that defendant had been drinking
and they got into a fight when he came home. He attacked her with a fork. Now he was
locked in the house with their three children. The officer and Stephanie immediately
went to the house.
         After defendant was removed from the house and taken into custody, the officer
went into the bedroom and found a baby asleep on the bed. The fork was on the floor.
Stephanie gave the officer a statement describing the events detailed above.


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       While at the jail, defendant made numerous telephone calls to Stephanie. Five of
the calls were played for the jury. In these calls, defendant told her he was facing a lot of
prison time and the only option was for her to go to the police station and tell them it was
not true that he hit her. She should say that she accused him only because she was mad.
He said, “The only thing you can do is call and say that it’s not true. That you already
had those bumps because when I go to court that’s what I’m going to say.” She should
say she got hurt when she collided with a woman outside. He repeatedly told her to get
rid of the charges against him and get him out of jail by going to the police station to tell
them she wanted to take back her statement. She should tell them she lied and he did not
do anything to her. He told her to say that she fell in the bathroom and hurt her head and
that she already had the injuries when he got home. She should say that she thought he
was with a woman and she accused him because she was mad. Stephanie told defendant
he should have come home to his family instead of going out with his “good-for-nothing”
friends. She told him, “You know well, [defendant], how you get after you’ve been
drinking.” He told her, “I promise you Stephanie, if you could see how down I am for
doing what I did to you. But it hurts me a lot that you called the cops on me that I don’t
know how to feel. On one side I’m feeling that I need you[,] that I’m missing you, that I
can’t be without you[,] but on the other side I remember when you called the cops
knowing the problems that I had; you know.” She told him she saw the devil in him that
day and he almost killed her. She said the district attorney was charging him because
they saw her face. He answered that he wanted her to come and say it was not true that
he hurt her. She asked, “How do you want me to go and say it’s not true when I’m all
beat up? [¶] … [¶] You think … that I will stand in front of the judge with the arms all
bruised, with the face all, the eye almost coming out, the side of the face I have it all hurt,
I have a busted lip. And I’m going to say[,] ‘Oh I fell and all of this happened.’?” She
said, “Seriously you want me to go? I know that they’re not going to believe me. When
the judge sees how you left … you don’t even have an idea how you left me.” He


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answered, “‘Cause I want (unintelligible) that I didn’t do anything to you. That it was
something else that happened.”
       At trial, Stephanie recanted. She explained that she had lied when she accused
defendant of attacking her. She testified that she found defendant drinking at a crowded
bar with a woman sitting on his lap. Stephanie approached the woman and got into a
fight with her. This was how Stephanie received her injuries. Stephanie left in her car,
picked up the children, and went home. Defendant’s friend dropped him off at home
later. Defendant was so drunk that he vomited outside before entering, then fell asleep on
the couch. She told him to go to bed. As he did, she asked him about the woman. He
told her to let him go to sleep. She told him to get his things and get out. When he would
not leave, she called the police because she did not want him in the house. After she
made the call on her cell phone from inside the house, she hung up. She went outside to
take a walk, leaving her cell phone inside the house. When she returned, the door was
locked. She got mad and called the police again from the market. She lied when she told
the police that defendant had threatened her and hurt her. She made things up that were
not true.
       A spousal abuse expert testified that it is very common in domestic abuse cases for
the arrested perpetrator to contact the victim and tell her to recant and convince the police
she had lied.
Defense Evidence
       José Ramos2 was out drinking with defendant that night. Defendant drank a lot
and was intoxicated. He was with a woman. Stephanie called defendant 30 or 40 times,
but he turned off his phone because he knew it was her. She also called José about
10 times. When José answered, he told her they were drinking at a particular bar. She
came to the bar and argued with the other woman. They got into a fight, punching and
hitting each other. José and defendant stepped aside. The bar was very dark so it was
2      The transcript also refers to José as Joseph.

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difficult to see the fight. No one tried to stop it. José told defendant, “Let’s go,” and they
left. José did not know when Stephanie left the bar.
                                       DISCUSSION
       Defendant contends the evidence was insufficient to support the conviction
because there was insufficient evidence demonstrating that he knew Stephanie had called
or was attempting to call the police to report a crime. We disagree.
       In reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences in favor of the judgment to determine
whether there is reasonable and credible evidence from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54
Cal.4th 205, 241.) We do not redetermine the weight of the evidence or the credibility of
witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) And we must accept logical
inferences that the jury might have drawn from the evidence even if we would have
concluded otherwise. (Streeter, supra, at p. 241.)
       “Section 136.1 criminalizes trying to dissuade a victim from reporting a crime.”
(People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.) “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. Section 136.1, subdivision (b)(1) does not require that the defendant
act knowingly and maliciously. (People v. McElroy[ (2005)] 126 Cal.App.4th [874,]
881.)”3 (Ibid.) The prosecution must also prove “the defendant’s acts or statements
[were] 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.) Intent is rarely shown


3     Under certain circumstances, section 136.1, subdivision (c) makes the offense in
subdivision (b)(1) a felony where the person undertakes the acts of dissuasion knowingly
and maliciously. (See People v. Upsher, supra, 155 Cal.App.4th at p. 1320.)


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by direct proof and “generally must be established by circumstantial evidence and the
reasonable inferences to which it gives rise.” (People v. Buckley (1986) 183 Cal.App.3d
489, 494-495.)
       Here, the record provides ample evidence from which the jury could reasonably
infer that defendant intentionally acted to prevent Stephanie from speaking to the police
and reporting his crimes. After defendant’s brutal attack on her, Stephanie eventually
succeeded in getting her cell phone, taking it outside, and calling 911. Defendant
followed her outside, grabbed the cell phone from her, and hung it up. Defendant argues
that he was unaware Stephanie had dialed 911, but his grabbing the phone and hanging
up the call suggest otherwise. Furthermore, the police immediately called back while
defendant held the phone. He was aware they were calling because he asked Stephanie
why they were calling. Then he took her cell phone back into the house and locked her
outside without it. His actions clearly prevented her from reporting his crimes to the
police. And if there were any doubt that he did so intentionally, his incessant postarrest
attempts from jail to silence Stephanie and convince her to recant demonstrated his
controlling character and supported the conclusion that his prearrest attempts were
similarly intentional. The evidence was more than adequate to support the conviction.4
                                     DISPOSITION
       The judgment is affirmed.




4       Defendant’s argument that the only evidence to support the conviction was
Stephanie’s hearsay statements to the officer the night of the incident, which Stephanie
later recanted, merely points out a conflict in the evidence. It was solely the province of
the jury to weigh conflicts and inconsistencies in the witnesses’ testimony and to evaluate
the witnesses’ credibility. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1181.)
We cannot reject the jury’s findings on appeal unless the evidence on which the jury
relied was physically impossible or inherently improbable—and it was not. (Ibid.)


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