People v. Morones

95 Cal.App.5th 721

313 Cal.Rptr.3d 688

The PEOPLE, Plaintiff and Respondent,

v.Anthony Edward MORONES, Jr., Defendant and Appellant.

C095560

Court of Appeal, Third District, California.

Filed September 19, 2023

Certified for Partial Publication.^*

Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

EARL, P. J.

While his two teenaged children were across the hall, defendant Anthony Edward Morones, Jr., fired a gun outside a bathroom window. After he was arrested and a complaint was filed against him, he attempted to persuade his children to lie to law enforcement about the incident. A jury found defendant guilty of grossly negligent discharge of a firearm, two counts of misdemeanor child endangerment, felon in possession of a weapon, and two counts of dissuading a witness.

On appeal, defendant contends that his witness dissuasion convictions under Penal Code section 136.1¹ should be reversed asserting, in part, the statute only applies to efforts to dissuade a witness prior to charges being filed. He also contends that the trial court erred when it failed to properly instruct the jury on elements of the offenses and consider section 654 in sentencing. We will reverse two of defendant's convictions for witness dissuasion and otherwise affirm the judgment.

FACTUAL AND LEGAL BACKGROUND

In August 2020, defendant's 16-year-old son Anthony and 14-year-old daughter Inez got into an argument. Angry, Anthony went to his bedroom and threw one of his shoes at a wall.²

Defendant, who had been in the bathroom across the hall from the bedrooms, came out and yelled at the teenagers to stop fighting before he returned to the bathroom. No one else was home.

A short time later, Inez and Anthony heard gunshots in the bathroom. Inez saw defendant leave the bathroom with a gun.³ Anthony told defendant to leave the house.

Timothy Gaea, a teacher at the elementary school across the street from defendant's house, was in his classroom with the principal when he heard two gunshots. About a minute later, he saw an adult male walk out of the house with Anthony at the door, "shooing" him out. The adult male pointed a gun at Gaea before walking away. The school principal called out to Anthony and Inez to inquire if they were okay.

Anthony and Inez called their maternal grandparents, Rachel and Pedro Gonzales, who picked them up from the house.⁴

Officer Kaela Ledford was called to the home. When she arrived, no one was there. Officer Ledford contacted Rachel Gonzales—the reporting party—by phone and eventually interviewed her, Anthony, and Inez at the house. Officer Ledford found three shell casings outside and below the bathroom window, with no dirt, weathering, or oxidization, which indicated to Officer Ledford they were recently expelled from a firearm. There was a hole in the eave above the bathroom window with fresh splintering. A screen to the bathroom window had a large rip in it.

That night, Rachel Gonzales returned to the house with Inez and Anthony. She saw defendant was there and called the police. Officers arrived and arrested defendant.

While in jail awaiting his preliminary hearing, defendant spoke with Anthony and Inez by phone multiple times, despite the existence of a protective order not to have contact with them while in jail.

On September 1, 2020, the prosecutor charged defendant with grossly negligent discharge of a firearm ( § 246.3, subd. (a) ) (count 1), and two counts of felony child endangerment ( § 273a, subd. (a) ) (counts 2 [as to Anthony] & 3 [as to Inez]). In March 2021, the prosecutor filed an amended information adding one count of felon in possession of a firearm ( § 29800, subd. (a)(1) ) (count 4), one count of attempting by threat or force to dissuade a witness from reporting a crime ( § 136.1, subd. (c)(1) ) (count 5 [as to Anthony]), and one count of attempting to dissuade a witness from reporting a crime ( § 136.1, subd. (b)(1) ) (count 6 [as to Inez]). As to each count, the prosecution alleged that defendant had suffered three prior serious or violent felony convictions ( § 1170.12, subd. (b) ).

A jury found defendant guilty as charged on counts 1, 4, 5, and 6, and guilty of the lesser included offense of misdemeanor child endangerment on counts 2 and 3.

Defendant filed a motion for a new trial arguing, in part, that the People failed to prove beyond a reasonable doubt that he dissuaded a witness from testifying at a preliminary hearing or trial. He argued that the evidence only showed that he asked the children to change their account of the incident. The trial court denied the motion, finding "there was sufficient evidence to justify the jury's verdict. There was numerous instances that they could have hung their hat on. We heard the recordings from [defendant] from the jail to his two children."

On January 3, 2022, the trial court found all prior conviction allegations true. The same day the court sentenced defendant to an aggregate third-strike sentence of 25 years to life, consisting of concurrent sentences of 25 years to life on counts 1, 5, and 6, a concurrent two years on count 4, and a concurrent 364 days each on counts 2 and 3.

Defendant filed a timely notice of appeal.

DISCUSSION

IDissuading Witnesses

Defendant argues that as a matter of law, the evidence cannot sustain his convictions for preventing or dissuading a report to law enforcement pursuant to section 136.1, subdivision (b)(1) because, in part, the children had already reported his criminal conduct to law enforcement prior to the jail calls in which he suggested they lie to law enforcement. He claims that, at best, defendant may have induced his children to give false—or to withhold—material information, a misdemeanor pursuant to section 137. He contends both his convictions for dissuading a witness must be reversed. In response, the People contend: (1) there was sufficient evidence to convict defendant under section 136.1, subdivision (a)(2)or (b)(1) ; (2) the issue is one of instructional error rather than a question of sufficiency of the evidence; (3) giving the wrong version of the instruction on witness intimidation was harmless error; and (4) if the error is reversible, retrial is not barred by double jeopardy considerations. We agree with defendant and conclude his convictions for dissuading a witness in counts 5 and 6 must be reversed.⁵

A. Additional Background

1. Calls with Inez

On September 22, 2020, at 12:27 p.m., after his arrest and formal charges having been filed against him, defendant and Inez spoke by phone. During that call, the following exchange took place:

Defendant: "I mean, you know what I'm saying, I didn't even have a gun like, ... did you see me with a gun shooting? Did you see me shoot a gun?

"[Inez]: Nah.

"[Defendant]: Well, then what the fuck would you say that for? Hey, how'd your Jordans go?

"[Inez]: I didn't say ...."

On September 29, 2020, defendant and Inez spoke by phone again. After defendant asked her to go somewhere where nobody could hear her, the following conversation took place.

Defendant: "What'd you tell the cops?

"[Inez]: I just told ‘em that - well, I just told ‘em that you were just in the bathroom and you just shot the gun. I didn't tell them that you had a gun. They just must have heard me wrong because I told ‘em that you didn't have a gun.

"[Defendant]: Hey, and you said I was in the bathroom and I shot it?

"[Inez]: Yeah.

"[Defendant]: And you told ‘em - uh, did you see me?

"[Inez]: No. [¶] ... [¶]

"[Defendant]: So what's up? Mom [sic ], you never seen me shoot a gun, man. Can you ma- when they come through, can you - can you swap it out for me and just be like - be like I don't know, many, you guys - you guys c- you gotta make up a big ass story that it was a lie please.

"[Inez]: Yeah, dad, I'll do that.

"[Defendant]: Are you or what, man? Are you with me? Do you want me to be here forever?

"[Inez]: Yes, I'm with you. You're my fucking best friend, man. [¶] ... [¶]

"[Defendant]: Hey, no, for real, look, um, they gonna have - they gonna have somebody come and talk to you again.

"[Inez]: What the hell? For what?

"[Defendant]: To try to get the - just to get your story again and shit like that and then they're gonna try to make it - they're - they're trying - you're the only one - you're the only reason why, fool, that - um, see they got head phones too.

"[Inez]: Mm-hm. [¶] ... [¶] "[Defendant]: But all I need is for you guys to do is just be like I don't know - I don't know if - if one of you guys said, like, you guys seen me with a - you didn't tell the cops you seen me with a gun?

"[Inez]: No.

"[Defendant]: Did Anthony maybe tell ‘em that you guys seen me with a gun the day before or the - nothing like that?

"[Inez]: No."

Inez testified that she understood defendant requested that she lie by telling law enforcement that he did not have a gun.

2. Calls with Anthony

On September 22, 2020, defendant spoke with Anthony by phone:

Defendant: "I - I know - I know but, uh, I can't understand why - what - what happened. Can you tell me what h- what'd you guys tell - what'd you tell - what'd you tell the people?

"[Anthony]: When you shot off the gun and then left, everybody came over here, like, the school, the teachers, principals, everybody and then my grandma .... [¶] ... [¶]

"[Defendant]: But you want me to go away forever?

"[Anthony]: No, I'm gonna drop all them charges when I go to your court. I'm gonna tell ‘em how everything was a lie but ...

"[Defendant]: Yeah.

"[Anthony]: ... whatever Inez tells them, that's Inez though. I - I'm gonna drop all my charges with you, Pop. Man, I - I didn't - I didn't want you to stay in there - I don't want you to stay in there for that long. I just want you to stay in there so you can get your mind right so you can get right ...

"[De...