People v. Serrano
| Citation | 77 Cal.App.5th 902,292 Cal.Rptr.3d 865 |
| Decision Date | 25 April 2022 |
| Docket Number | F080692 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Antonio Valle SERRANO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Certified for Partial Publication.*
Nicholas Seymour, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Antonio Valle Serrano was convicted by jury trial of dissuasion of a victim by threat of force, criminal threats, simple assault, and infliction of corporal injury resulting in a traumatic condition on a victim. On appeal, defendant contends (1) the conviction for dissuasion of a victim must be reversed because the trial court failed to properly instruct the jury on the malice element of the offense, and (2) the conviction for simple assault must be reversed because it is a lesser included offense of infliction of corporal injury. We reverse the conviction for simple assault, affirm the remaining convictions, and remand for resentencing.
On September 16, 2019, the Kern County District Attorney charged defendant, by information, with dissuading a victim by threat of force ( Pen. Code, § 136.1, subd. (c)(1) ;1 count 1), making criminal threats (§ 422; counts 2 & 5), committing assault with a deadly weapon (§ 245, subd. (a)(2); count 3), and inflicting corporal injury resulting in a traumatic condition on a victim (§ 273.5, subd. (a); count 4). The information further alleged defendant personally used a firearm during the commission of each of those offenses (§ 12022.5, subd. (a)).
On September 23, 2019, defendant pled not guilty to all counts and denied all special allegations.
On November 21, 2019, trial commenced.
On December 5, 2019, the trial court dismissed count 5 on the prosecution's motion.
On December 6, 2019, a jury found defendant guilty of counts 1, 2, and 4. The jury found defendant not guilty of count 3 (assault with a deadly weapon) but guilty of the lesser included offense of simple assault ( § 240 ). The jury also found all firearm allegations not true.
On January 28, 2020, the trial court sentenced defendant to the upper term of four years on count 4 and a concurrent term of three years on count 1. The court further sentenced defendant to two years on count 2, stayed pursuant to section 654, and 180 days on count 3, stayed pursuant to section 654.
That same day, January 28, 2020, defendant timely filed a notice of appeal.
A.V. and defendant were in a dating relationship and had been living together for approximately one year. On August 23, 2019, while at home, defendant and A.V. got into an argument. Defendant had been drinking alcohol and insisted A.V. take him to the store to buy more alcohol. When A.V. refused, defendant became upset and left the house.
After defendant left the house, A.V. went outside to close the garage door. Defendant returned from his pickup truck and confronted A.V. The confrontation became physical. Defendant hit A.V on the head and pushed her to the ground. He put his foot on her face to keep her from getting up. While on the ground, A.V.’s left hand and keys were in her pocket. Defendant tried to pull her hand away and take her keys from her. As a result of this altercation, A.V. suffered abrasions to her face
, injuries to her arm and chest, bruising to the left side of her body, and injuries to both hands, including scrapes and bleeding to the back of her left hand and fingers.
A.V. testified that, during the conflict, defendant pulled a small gun from his pocket, pointed it at her head, and told her "not to dare call the police because [she] would be sorry about it." A.V. became frightened and thought defendant might kill her.
A.V.’s daughter was at home at the time of the incident. When defendant became aggressive, A.V. started yelling and calling for her daughter to help her. The daughter, who had been sleeping, was awakened by A.V.’s calls. She went outside and saw her mom crying on the floor and defendant by the door of his truck. Defendant, seeing the daughter, got in his truck, and left "in a hurry." The daughter saw bruises and scratches on A.V. At A.V.’s request, she called the police.
An unidentified witness also called 911 to report the crime. An audio recording of the call was entered into evidence and played for the jury. The caller reported the assailant
In response to those calls, Delano Police Officer Contreras was dispatched to A.V.’s home. Officer Contreras investigated A.V.’s complaint, took her statement, and photographed her injuries. A.V. appeared distraught and as if she had been crying.
Officer Contreras offered A.V. an emergency restraining order and she accepted.
Defendant returned to the home the next evening, August 24, 2019. He did not appear to have a weapon with him. A.V. told him to leave, but he refused saying it was also his house. She told defendant she had contacted the police, but she did not think he believed her. He repeated his warning to her that if she called the police, she knew what would happen.
That same evening, Officer Contreras was again summoned to the home.2 She established contact with defendant and conducted a pat down search of his person, but she did not find a firearm or any ammunition on him. She requested that A.V. search the residence and contact her if a firearm was found. A.V. never reported finding a firearm.
Defendant contends the trial court erred by failing to properly instruct the jury on the charge of dissuading a victim by threat of force. Specifically, he contends the court erred by failing to instruct the jury that commission of the offense requires a defendant to act "knowingly and maliciously" ( § 136.1, subd. (c) ) and by failing to provide the jury with the statutory definition of "malice" ( § 136 ). He contends his state and federal due process rights and Sixth Amendment right to a jury trial were violated as a result. We agree the trial court erred by failing to properly instruct the jury on the malice element of the offense.
( People v. Merritt (2017) 2 Cal.5th 819, 824, 216 Cal.Rptr.3d 265, 392 P.3d 421 ( Merritt ).)
( People v. Young (2005) 34 Cal.4th 1149, 1200, 24 Cal.Rptr.3d 112, 105 P.3d 487 ( Young ).)
"The independent or de novo standard of review is applicable in assessing whether [jury] instructions correctly state the law." ( People v. Posey (2004) 32 Cal.4th 193, 218, 8 Cal.Rptr.3d 551, 82 P.3d 755.) ( People v. Moore (1996) 44 Cal.App.4th 1323, 1330–1331, 52 Cal.Rptr.2d 256.)
The crime of dissuading a victim by threat of force is set forth in section 136.1. Subdivision (b)(1) of that section defines the basic crime, and subdivision (c)(1) defines an aggravated form of the crime committed knowingly and maliciously. These subdivisions read, in pertinent part, as follows:
A violation of subdivision (b)(1) of section 136.1, ( People v. Cook (2021) 59 Cal.App.5th 586, 590, 273 Cal.Rptr.3d 684.)
"Under section 136.1,...
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