Thursday, May 26, 2011
C.A. Affirms Potential Life Sentence for Dissuading Witness
By KENNETH OFGANG, Staff Writer
A state law which makes attempting to dissuade a witness from reporting a crime punishable by up to life in prison, when the crime is gang-related, applies without regard to whether the witness is a victim or a bystander, the Court of Appeal for this district ruled yesterday.
Div. Six, in an opinion by Justice Kenneth Yegan, affirmed the sentence of seven years to life for a Santa Barbara County gang member convicted of assaulting an off-duty sheriff’s deputy as he attempted to call 911 about an assault in progress. The panel also upheld a consecutive seven-year term for the assault.
“This case shows that the law takes a dim view of gang members who interfere with the reporting of a crime in progress,” Yegan wrote. “Such interference strikes at the very heart of preserving public safety. It is a responsible act of citizenship to report street gang crimes. A gang member who seeks to harm the reporter deserves, and here receives, the full measure of the law.”
The defendant, Edward “Monster” Galvez Jr., was apprehended following the 2007 incident outside a restaurant in Carpenteria. Witnesses said Galvez and several other men became embroiled in an argument and started kicking and punching one of the men who had words with the group.
Charles McChesney, the off-duty deputy, called 911 on his cell phone. Asked by one of Galvez’s cohorts whether he was calling the police, McChesney—according to testimony—replied “yes, just take off,” whereupon he was viciously attacked by Galvez’s group. Another off-duty officer, who said McChesney “was in severe danger,” chased the group away, although one of them—identified as the same man who asked McChesney if he was calling police—reached over and took the deputy’s phone.
McChesney suffered serious injuries, including a ligament tear that necessitated surgical knee repair.
Two of the assailants entered into guilty pleas, but Galvez went to trial. A local police detective, qualified as a gang expert, testified that the 300-pound Galvez was active in Carpas, Carpenteria’s only street gang.. He had acquired his moniker because of his size, stature, and penchant for violence, the detective said.
In response to a hypothetical question, the detective opined that if someone tried to call the police about a crime being committed in gang territory, and if the persons committing that crime were gang members, they would consider the caller a “rat,” and the gang members present would likely respond with violence in order to maintain their stature within the gang and instill fear in the populace.
Jurors found Galvez guilty of second degree robbery, attempting to dissuade a witness, and assault with great bodily injury—with special findings that all three crimes were for the benefit of a criminal street gang—and participation in a criminal street gang.
Santa Barbara Superior Court Judge Frank Ochoa sentenced Galvez to five years for the robbery, seven years for the assault, and seven years to life—including the gang enhancement—for witness dissuasion, all consecutive.
Yegan, writing for the Court of Appeal, rejected the contention that the dissuasion statute, Penal Code Sec. 136.1, does not apply to an effort to dissuade a victim from reporting a crime being committed on that person.
The statute, Yegan noted, makes it a crime to “ attempt[ ] 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” several acts, including “[m]aking any report of that victimization to any peace officer or state or local law enforcement officer.”
That language, the jurist said, shows “a legislative intent to cover the prevention or dissuasion of any witness, victim or non-victim, from reporting a crime.”
The panel also upheld the gang enhancement, rejecting the defense claim that the finding the crime was gang-related was improperly based solely on the expert’s opinion. Yegan noted that Galvez had a gang tattoo on his neck, that his accomplices were admitted gang members, and that percipient witness accounts of the attack corroborated the expert’s opinion as to how gang members would react if someone tried to call the police while a crime was in progress.
The court did, however, reduce the defendant’s sentence to 14 years to life. Yegan explained that the attempt to dissuade McChesney from making the 911 call, and the robbery of his cell phone, shared a single motive and thus could not be separately punished under Penal Code Sec. 654.
The consecutive term for assault, however, did not violate Sec. 654 because the detective’s testimony established that the assault was motivated by an intent to enhance the gang’s reputation for violence, while the taking of the cell phone was motivated by a desire to delay the reporting of the assaults and avoid arrest, Yegan said. The justice added that there was sufficient evidence to convict Galvez of robbery as an aider and abettor, even though he did not personally take the phone.
The case is People v. Galvez, 11 S.O.S. xxxx.
Copyright 2011, Metropolitan News Company