People v. Burgess
| Docket Number | C095650 |
| Decision Date | 01 May 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. TRAVIS BURGESS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
A jury found defendant Travis Burgess guilty of assault likely to cause great bodily injury, domestic violence, intimidating a witness (two counts), and dissuading a witness. The trial court sentenced defendant to 13 years in state prison.
On appeal, defendant contends that the witness dissuasion conviction under Penal Code section 136.1, subdivision (b)(2)[1] should be reversed, asserting the statute only applies to efforts to dissuade a witness prior to charges being filed. The prosecution charged witness dissuasion based on telephone calls from jail defendant made to the victim, more than a month after the prosecution filed a criminal complaint against him. We will reverse defendant's conviction for witness dissuasion and remand for resentencing.
The prosecution charged defendant in an information with assault likely to cause great bodily injury (§ 245, subd (a)(4); count 1), willful infliction of corporal injury to a cohabitant and a person with whom defendant had a dating relationship (§ 273.5, subd. (a); count 2), attempting to dissuade a witness from testifying (§ 136.1, subd (a)(2); counts 3 &4), dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 5), and contempt of court (§ 166, subd. (c)(1); counts 6, 7, 8 &9).[2] As to counts 1 and 2, the information further alleged that defendant inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and, as to count 2, defendant had suffered a prior domestic violence conviction (§ 273.5, subd. (f)(1)).
A detailed recitation of the facts underlying defendant's assault and domestic violence convictions is not necessary to resolution of this appeal. The following summary will suffice.
The victim began dating defendant in February 2018. Both the victim and defendant used methamphetamine and alcohol daily, and their relationship, amicable at first, turned into screaming matches and physical altercations. On two occasions in July 2019, the victim called police to the home she shared with defendant in Manteca, reporting that defendant had struck her, pushed her, and thrown her into a wall.
On September 10, 2019, the victim checked into a hotel in Stockton and invited defendant to join her. An argument ensued because defendant believed another man had been in the room. Defendant choked the victim and threw her on the bed multiple times when she tried to get up. She was bleeding from the nose and chest, and her blood was on the blankets and sheets. On September 11, the victim and defendant changed rooms and another argument erupted. Defendant pushed her into a wall, punched her face, and kicked her. The hotel manager, responding to reports of a female screaming in the room, knocked on the door and asked to speak to the woman in the room. Defendant told the manager through the closed door that the woman was in the shower. When the victim opened the door, the manager saw the victim with her makeup running, blood on her face, a black eye, and what appeared to be a cigarette burn on her clavicle. She begged the manager not to leave her alone with defendant. She said defendant was going to kill her. The manager called police and defendant packed his belongings and left before they arrived.
On October 22, 2021, the jury found defendant guilty on counts 1 through 5 and found true that defendant inflicted great bodily injury. Specifically relevant here, the jury found defendant guilty of violating section 136.1, subdivision (b)(2) for "[d]issuading a witness from causing a Complaint or Information from being prosecuted . . . occurring on or about October 22nd, 2019, to October 26th, 2019 ...." The trial court found true that defendant had suffered a previous conviction for domestic violence.
The court sentenced defendant to the upper term of five years on count 2, plus four years for the enhancement; the middle term of two years on counts 3 and 4, consecutive; and two years on count 5, concurrent. Pursuant to section 654, on count 1 the court imposed and stayed a sentence of the middle term of three years, plus four years on the enhancement.
The court sentenced defendant to a total aggregate term of 13 years.
Defendant timely appealed.
Section 136.1, subdivision (b)(2)
Defendant asserts that his conviction under section 136.1, subdivision (b)(2) must be reversed for insufficient evidence, because the statute only applies to a defendant's efforts prior to arrest to prevent a crime being reported to law enforcement. Here, the conduct in question consisted of defendant's telephone calls from jail to the victim more than a month after he was arrested and a criminal complaint filed.
We agree with the court in People v. Reynoza (2022) 75 Cal.App.5th 181, 189, review granted May 11, 2022, S273797 (Reynoza), which held that
Accordingly, we reverse defendant's conviction on count 5 for violation of section 136.1, subdivision (b)(2).
On September 12, 2019, the prosecution filed a criminal complaint against defendant. On September 18, 2019, he was arrested.
On October 22, 2019, defendant spoke to the victim by telephone from jail.[3] The victim told defendant that she would be attending his preliminary hearing, originally scheduled for the following day. Defendant responded, "Oh man, that's not good." When the victim asked if she should not attend, defendant said, "No, hell no." When she asked why, defendant said, "Babe I mean babe I'm not going to tell you what to do over the phone but if you did, I'll be gone, you won't ever see me again probably." Toward the end of the conversation, defendant said, "I hope I don't see you until you pick me up, that's all."
On October 24, 2019, in another telephone call from jail, the victim told defendant she had been served with a subpoena. Defendant responded that he was "fucked," because "this all backfired this is not good." He explained, Defendant said,
On October 26, 2019, when defendant and the victim spoke again on the telephone, defendant suggested the victim "could go to the doctors the night before [her court appearance] and tell them you had an anxiety attack or something like that ...." When the victim raised the possibility of the court issuing a bench warrant if she did not appear, defendant said a friend in jail with him had suggested that the victim "could just say we were drunk, just say hey we were, we we were drunk you know what I mean and we were drinking all night and we were drinking all day and I don't know what really happened, I kind of blacked out and it will be a done deal." Defendant reported that in his friend's case, "they did nothing to her uh, she said that she made up the whole story because she was upset at him this and that and nothing ever happened to her," and "his deal got better and that was it." Defendant urged the victim "you can do what you want to do but uh, anything, just tell them the truth and just say I was drunk, we were up all night drinking." Defendant asked her to say, "I attacked him and he just pushed me off him," and he assured her that "[n]othing at all going to happen to you, they are going to drop everything, drop charges and everything." Defendant continued that the victim should say, defendant "didn't have a choice," and "you came at me, but you can't say like that I tried to make you unconscious ...." Defendant acknowledged that "I know what went down but for right now" she should say it was defendant protecting himself.
On October 31, 2019, defendant told the victim "now you can get lost again, they can't find you, you just get lost again," and "I'm just telling you you don't have to show up, don't show up anymore you don't have to, it's up to you."
In determining whether a conviction is supported by sufficient evidence," 'we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence- 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." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]'" (People v. Nelson (2011) 51 Cal.4th 198, 210.)
We review the interpretation of a...
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