P. v. Zepeda

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Filed 11/20/07 P. v. Zepeda CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CECELIA ANTIONETTE ZEPEDA,
Defendant and Appellant.
C053912
(Super. Ct. No. CM024049)
ORDER MODIFYING OPINION AND
DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed in this case on
November 1, 2007, be modified as follows:
1. On page 8, delete footnote 4 in its entirety, which begins:
“Because we conclude”; and
2. On page 8, add part III to the DISCUSSION, inserting the
following above the “DISPOSITION”:
III
Defendant contends the trial court erred in
imposing the upper term for dissuading a witness by

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force or threat by relying in part on two facts that
are elements of the offense--“threat of great bodily
harm” and “threatened witnesses who might cooperate
with law enforcement.” The People respond that
defendant forfeited the issue on appeal by failing to
object to the court’s use of these sentencing factors
below. Even assuming we can review the claim, we find
any error was harmless.
“A fact that is an element of the crime may not
be used to impose the upper term.” (Former Cal. Rules
of Court, rule 4.420(d), eff. until Jan. 1, 2007
[further rule references are to these rules].)
“However, where the facts surrounding the charged
offense exceed the minimum necessary to establish the
elements of the crime, the trial court can use such
evidence to aggravate the sentence.” (People v.
Castorena (1996) 51 Cal.App.4th 558, 562 (Castorena).)
Subdivision (b) of section 136.1 provides in
pertinent part: “Except as provided in subdivision
(c), every person who attempts to prevent or dissuade
another person who has been the victim of a crime or
who is witness to a crime from doing any of the
following is guilty of a public offense and shall be
punished by imprisonment in a county jail for not more
than one year or in the state prison: [¶] (1) Making
any report of that victimization to any peace officer
or state or local law enforcement officer or probation
or parole or correctional officer or prosecuting
agency or to any judge.”
Subdivision (c) of section 136.1 provides in
pertinent part: “Every person doing any of the acts
described in subdivision . . . (b) knowingly and
maliciously under any one or more of the following
circumstances, is guilty of a felony punishable by
imprisonment in the state prison for two, three, or
four years under any of the following circumstances:
[¶] (1) Where the act is accompanied by force or by
an express or implied threat of force or violence,
upon a witness or victim or any third person or the
property of any victim, witness, or any third person.”
(Italics added.)
A defendant need not threaten “great bodily harm”
in order to violate section 136.1, subdivision (c).
Indeed, threatening to destroy a witness’s property is
sufficient. Because a threat of great bodily harm

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exceeds what is required to be convicted of dissuading
a witness by force or threat, the trial court did not
err in considering this fact as an aggravating factor.
(Castorena, supra, 51 Cal.App.4th at p. 562.)
The People concede that threatening witnesses who
might cooperate with law enforcement is an element of
the offense of dissuading a witness by force or
threat, but argue that because “the threats . . .
involved ‘great bodily harm,’” which “is not an
element of the crime,” “no dual use of facts
occurred.”
Former rule 4.421(a) separately lists “the crime
involved . . . threat of great bodily harm” and “[t]he
defendant threatened witnesses . . . or in any other
way illegally interfered with the judicial process” as
separate aggravating facts (former rule 4.421(a)(1) &
(6), eff. until Jan. 1, 2007), and the trial court
referred to these facts separately. Thus, we are not
convinced the trial court considered these two facts
as a single factor in deciding to aggravate
defendant’s sentence, as the People appear to suggest.
Nevertheless, even assuming the court impermissibly
relied upon the fact that defendant threatened
witnesses who might cooperate with law enforcement, we
find any error was harmless.
“‘When a trial court has given both proper and
improper reasons for a sentence choice, a reviewing
court will set aside the sentence only if it is
reasonably probable that the trial court would have
chosen a lesser sentence had it known that some of its
reasons were improper.’” (People v. Cruz (1995)
38 Cal.App.4th 427, 433-434 (Cruz), quoting People v.
Price (1991) 1 Cal.4th 324, 492.)
Here, three of the four factors relied upon by
the trial court were proper: The crime involved the
threat of great bodily harm; the crime involved “a
course of planning and prior planning that indicates
criminal sophistication”; and defendant was on
probation at the time of the offenses. Given the
court’s reliance on these factors, we find it is not
reasonably probable that the trial court would have
chosen a lesser sentence had it known that it could
not rely on the fact that defendant threatened
witnesses who might cooperate with law enforcement.
(Cruz, supra, 38 Cal.App.4th at p. 434.)

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This modification does not effect a change in the judgment.
The petition for rehearing filed by defendant is denied.
BY THE COURT:
SIMS , Acting P.J.
HULL , J.
BUTZ , J.

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