People v. Manzanares Jr.
2020 COA 140. No. 16CA1941. Solicitation to Commit Retaliation—Solicitation to Commit Intimidation—Double Jeopardy—Evidence.
September 24, 2020
In a case not at issue here, defendant was charged with burglary, two counts of second degree assault, and two counts of felony menacing for incidents involving his girlfriend S.M. While awaiting trial in jail, defendant solicited inmates Martinez and Avitia to retaliate against S.M. for reporting him to police and to intimidate her to prevent her from testifying. Defendant was convicted of two charges of solicitation of retaliation against a witness and two charges of solicitation of intimidation of a witness.
On appeal, defendant argued that he was deprived of his right to counsel and to be present at a critical stage of the proceeding when the prosecution conducted an ex parte hearing. However, defendant waived this argument because defense counsel agreed to the trial court’s curative procedure and requested nothing further.
Defendant also contended that the trial court reversibly erred by admitting several pages of Avitia’s handwritten notes regarding his conversations with defendant. Here, defense counsel’s cross-examination was a general and sustained attack on Avitia’s credibility that was not limited to specific facts. Under these circumstances, the notes qualified for admission as prior consistent statements. Therefore, the trial court did not err.
Defendant also argued that the trial court reversibly erred by refusing to strike Avitia’s opinion that defendant was a “piece of shit.” While it would have been better for the trial court to strike this comment, it was passing and gratuitous and did not substantially influence the verdict or affect the fairness of the trial proceedings. Therefore, the court did not err.
Defendant further contended that one count of solicitation to commit retaliation and one count of solicitation to commit intimidation must be vacated because they are multiplicitous and violate double jeopardy. However, the unit of prosecution under the solicitation statute authorizes prosecution of separate counts for each separate person solicited. Here, the facts established that defendant separately solicited Martinez and Avitia to retaliate against and intimidate S.M. Accordingly, the evidence supports separate and distinct sets of crimes, so the charges were not multiplicitous and there was no double jeopardy violation.
The judgment was affirmed.
Solicitation to Commit Retaliation Solicitation to Commit Intimidation Double Jeopardy Evidence