P. v. Packer CA2/6

Filed 5/14/13 P. v. Packer CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B239166 (Super. Ct. No. 2009045961) Plaintiff and Respondent, (Ventura County)

v.

JOSHUA GRAHAM PACKER,

Defendant and Appellant.

Joshua Graham Packer appeals from the judgment following his conviction by jury of misdemeanor hit-and-run driving (Veh. Code, § 20002, subd. (a)); misdemeanor battery (Pen Code, § 242);1 and attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)).2 The trial court sentenced appellant to prison for eight months for attempting to dissuade a witness from reporting a crime, with concurrent

1 All statutory references are to the Penal Code unless otherwise stated. 2 Appellant was charged with felony attempting to dissuade a witness by force or threat in violation of section 136.1, subdivision (c). The jury returned a verdict of guilty for the lesser included offense of dissuading a witness in violation of "section 136.1(a) and/or (b)." Subdivision (a) of section 136.1, prohibits attempting to dissuade a witness from giving testimony, while subdivision (b) of that section prohibits attempting to dissuade a witness from reporting a crime. As our discussion will explain, the record leaves no question that the jury convicted appellant of attempting to dissuade a witness from reporting a crime.

six-month terms for hit-and-run driving and battery.3 Appellant contends that his conviction for attempting to dissuade a witness is based upon a facially defective verdict form, and that the court abused its discretion by sentencing him to state prison for attempting to dissuade a witness, without recognizing and exercising its discretion to impose a misdemeanor sentence pursuant to section 17, subdivision (b). We affirm. FACTUAL AND PROCEDURAL BACKGROUND Prosecution Case On December 11, 2009, Damian Perea was home when he heard a loud crashing sound. He went outside and found that a sports utility vehicle (SUV) had crashed into his parked car. Appellant stumbled from the SUV. The men went into Perea's home to exchange information. Appellant seemed intoxicated and smelled of alcohol, and Perea felt uncomfortable. They went back outside after appellant wrote some information on a paper. While holding that paper, Perea said he needed to call 911. Appellant said he did not want him to call police. Perea started dialing his cell phone. Appellant slapped Perea's hand, and grabbed the paper and cell phone from him. Perea pushed appellant. Appellant drove away in the SUV. Perea wrote the SUV license plate number on his hand. Later, on the same day, appellant called the Ventura Police Department to report a battery. Officer Morris Rivard spoke with him and told him to file a report in person. Rivard also offered to meet appellant to take his report. Appellant declined his offer and hung up. Rivard testified that appellant sounded like he was under the influence of alcohol or drugs, and his voice was "thick and slurred." Rivard and Officer Mary Eltz met with appellant on December 12, 2009, after Perea reported the December 11th collision. Appellant told Eltz that his SUV