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Filed 8/28/06 P. v. Matteucci CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY MATTEUCCI,
Defendant and Appellant.
A109205
(San Mateo County
Super. Ct. No. SC055570A)
Anthony Matteucci appeals the jury-trial conviction and sentence imposed for
misdemeanor battery (as a lesser included offense of forcible oral copulation), false
imprisonment (as a lesser included offense of kidnapping with intent to commit oral
copulation), dissuading a victim, and three counts of sexual battery. Matteucci contends
the trial court erred by failing to give a unanimity instruction on the sexual battery and
kidnapping charges, by instructing the jury on lesser included offenses, by failing to
remand for sentencing in juvenile court, and by sentencing the wobbler offenses as
felonies. Matteucci further contends the conviction for dissuading a witness is not
supported by substantial evidence, and the concurrent terms imposed should have been
stayed pursuant to Penal Code section 654. 1 The Attorney General concedes the
concurrent terms for false imprisonment and sexual battery should be stayed pursuant to
section 654. We affirm the sentence and conviction, but remand for the trial court to
amend the abstract of judgment to stay the terms imposed on counts two, five and six.
1
All further references are to the Penal Code unless otherwise noted.
1

PROCEDURAL BACKGROUND
Matteucci was accused of committing the following crimes on or about July 21,
2003: count one—forcible oral copulation (section 288a, subd. (c)(2)); count two—
kidnapping to commit oral copulation (section 209, subd. (b)(1)); count three—
dissuading a witness (section 136.1, subd. (b)(1)); counts four through six—sexual
battery with unlawful restraint (section 243.4, subd. (a)). Each count alleged Matteucci
was a minor who was at least 16 years of age at the time of the offense, and the offense is
set forth in Welfare & Institutions Code section 707, subd. (b), pursuant to Welfare &
Institutions Code section 707, subd. (d)(1).
Trial testimony began on November 3, 2004. Counsel stipulated Matteucci was
seventeen years of age at the time of the incident. Over defense counsel’s objection, the
trial court gave instructions for lesser included offenses to the charges for forcible oral
copulation and kidnapping.
The jury returned its verdicts on November 18, 2004. The jury found Matteucci
not guilty on count 1 of forcible oral copulation, but guilty of the lesser included offense
of misdemeanor battery, in violation of section 242. The jury found Matteucci not guilty
on count 2 of kidnapping with intent to commit oral copulation, but guilty of the lesser
included offense of felony false imprisonment, in violation of section 236. The jury also
found Matteucci guilty as charged on counts three through six.
On February 4, 2005, the trial court sentenced Matteucci to the midterm of 3 years
on count 4 (sexual battery) and midterm of two years on count 3 (dissuading a witness)
consecutive to the principal term of count 4. The trial court imposed concurrent terms of
two years on count 2 (false imprisonment) and three years on each of counts 5 and 6
(sexual battery). The trial court imposed a sentence of 60 days in county jail with credit
for time served on count 1 (misdemeanor battery). In addition, the trial court stayed
execution of the sentence and placed Matteucci on supervised probation for a period of
four years with one year to be served in county jail.
2

FACTS
The charges against Matteucci arose from an incident that occurred between him
and Melody Doe on the evening of July 21, 2003, after the two had been drinking with a
group of high school friends. At trial, they each offered a different version of what
happened that night.
The victim, Melody Doe, testified she and Matteucci were two of a group of
friends who all attended South San Francisco High School. Melody stated that on July
21, 2003, she was about five feet four inches tall and weighed one hundred and fifteen
pounds. She estimated Matteucci was about six feet two or three and about two hundred
and fifty pounds. That evening Melody, her best friend Alexandria (Alex), cousin Jenna,
and other friends Elliot, Ray, and Nahel met at Elliot’s house to celebrate his birthday.
They decided to go to the local Jack-in-the-Box for something to eat and were joined
there by Matteucci. Melody understood Matteucci and Alex were dating at this time.
After, they bought some beer and wine coolers and went to drink them at a favorite spot
known as the Wind Harp. Melody drank a 40 ounce bottle of beer over a 30 minute
period. The friends socialized for about 45 minutes to an hour at the Wind Harp, by
which time Melody stated she was intoxicated. She was slurring her words and not
walking straight. The group then drove to McDonalds, where Alex had arranged to meet
other friends. After Alex left with her other friends, Matteucci invited Melody to ride
with him back to Ray’s house.
During the ride back to Ray’s house, Matteucci brought up the subject of
“freebies,” meaning sexual favors. Melody pretended she thought Matteucci was asking
for cigarettes, but Matteucci kept asking about a freebie When they arrived at Ray’s
house, Melody got out of the car and went up to her cousin Jenna, told Jenna what had
happened in the car, and asked Jenna not to leave her side because she didn’t feel
comfortable being around Matteucci alone.
Matteucci then suggested he take her to the 7-Eleven to get something to eat.
Melody agreed but wanted Jenna to go with them. Melody took Jenna’s hand but Nahel
was holding Jenna back. A little tugging ensued, Melody and Jenna were separated, and
3

Matteucci nudged Melody into the car with a slight push. Melody testified all this
happened quickly, she did not want to go alone to the 7-Eleven with Matteucci, and she
tried to get out of the car as it moved away. It was a minute to two minute drive to the 7-
Eleven. After Matteucci parked, he went into the 7-Eleven to buy chips. Melody wanted
to go into the store with him, but he slammed the car door and went in alone. Melody
couldn’t get the car door to open. There were no keys in the car and Melody thought
Matteucci had locked the doors. After Matteucci got back to the car, he gave Melody the
bag of chips and then drove behind the 7-Eleven into the empty Goldilocks Restaurant
parking lot. By this time the sun was down, it was dark, and the parking lot was poorly
lit.
The first thing Melody remembered happening after the car came to a stop was
Matteucci unbuckling her seat belt and touching “everything, my butt, breasts, just
everything.” Melody told Matteucci she did not want to do this and tried to take his
hands off her. Melody said this went on for about a minute or two, during which time
Matteucci also touched her vagina. Matteucci then got out of the car, came round to the
passenger side and opened the door. He lifted Melody out of the car and pressed her up
against him with his back to the car. Then Matteucci put his hands under Melody’s
clothes and touched her bare buttocks and breast, and touched her vagina over her pants.
Matteucci was trying to get his hand under her pants to her vagina when Melody broke
free and ran. Melody only ran about four or five parking spaces before she felt Matteucci
grab her, so she dropped to the ground. Matteucci picked her up under the arms, put her
into the car, and slammed the door. Melody tried to pull the passenger door open but
could not get out.
When Matteucci got back in the car, he started touching Melody again under her
clothes on all her intimate parts. This went on for about a minute or two, during which
time Matteucci took Melody’s hand and tried to make her touch his penis. Then
Matteucci grabbed Melody by the neck and forced her head towards his erect penis. He
said he would hurt her if she bit his penis. Matteucci forced Melody’s mouth over his
penis. Melody was unable to move because Matteucci had a hand or elbow on her back.
4

Matteucci drove back to Ray’s house while Melody copulated him in this manner. After
Matteucci parked and took his elbow off her back, Melody ran inside and told her cousin
Jenna what had happened. The ride back from the parking lot took a minute or two.
Melody got home very late from the party, slept till 8.p.m. the next day, and first went to
the police on the morning of the day after that, July 23.
Matteucci testified that by July 2003 he had graduated from South San Francisco
High School and was working with a moving company for the summer before attending
St. Mary’s College in Moraga on academic and athletic scholarships. Matteucci testified
he consumed alcohol at the Wind Harp but was not intoxicated, just a little red in the
face. He said the mood in the group was happy and everyone was having a good time.
Matteucci said he noticed Melody had drunk a whole 40-ounce bottle of beer and was
intoxicated. After they dropped Alex at McDonalds, Matteucci asked if any of the others
wanted to ride with him to Ray’s house, and Melody volunteered. On the way over to
Ray’s house, Matteucci and Melody just listened to the radio without talking.
When they arrived at Ray’s house, Ray was standing in the driveway. Matteucci,
Melody and Ray waited there for others to arrive. While they waited, the three joked
about the idea of sexual “freebies.” According to Matteucci, Melody understood what a
“freebie” was and joined in with the joke. After everyone congregated, Matteucci offered
to take Melody to the 7-Eleven to get something to eat because she had been complaining
about being hungry. Melody wanted more to eat because she planned to continue
drinking that evening. Matteucci unlocked the passenger door and Melody opened it and
got in the car. Matteucci testified the only way all doors on the car lock is if he locks
them from driver’s side door, and he did not do that.
Matteucci said he parked at the 7-Eleven, and he and Melody got out the car and
went into the store. Melody selected salt and vinegar chips and he picked up a packet of
gum. They paid for the items and went back to the car. Matteucci then began to drive
back to Ray’s house, taking his usual route via the Goldilocks Restaurant parking lot
because it avoids traffic lights and a stop sign. Matteucci said he was enjoying Melody’s
company and was attracted to her. After he turned into the restaurant parking lot, he
5

pulled over under the first light pole so he could retrieve a sweatshirt from the trunk.
Matteucci pulled on the sweatshirt and got back in the car. Then he asked Melody if she
would ever give him a “freebie.” Melody thought Matteucci was joking at first. When
she realized he was serious, she responded she did not want Alex to find out. Matteucci
told Melody he would never tell Alex. Melody then agreed to perform oral sex on
Matteucci until they got back to Ray’s house. Matteucci testified Melody voluntarily
performed oral sex on him and he did not force her to do anything against her will.
DISCUSSION
A. Unanimity Instruction
Matteucci contends the trial court should have given the unanimity instruction,
CALJIC No. 17.01, on the kidnapping charge and its lesser included offenses because the
jury could have found the kidnapping occurred at different points on the trip to and from
the 7-Eleven. Matteucci further contends the misdemeanor battery and three felony
sexual battery convictions suffer from the same infirmity because Melody’s description
of Matteucci touching her inside and outside the car, and over and under her clothes,
amounts to a series of different acts.
“Defendants in criminal cases have a constitutional right to a unanimous jury
verdict. [Citation.] From this constitutional principle, courts have derived the
requirement that if one criminal act is charged, but the evidence tends to show the
commission of more than one such act, ‘either the prosecution must elect the specific act
relied upon to prove the charge to the jury, or the court must instruct the jury that it must
unanimously agree that the defendant committed the same specific criminal act.’
[Citations.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 114-115, italics in
original.) There is an exception: “The unanimity instruction is not required when the
acts alleged are so closely connected as to form part of one transaction. [Citations.] The
‘continuous conduct’ rule applies when the defendant offers essentially the same defense
to each of the acts, and there is no reasonable basis for the jury to distinguish between
them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
6

Here, Matteucci suggests various ways in which the trip to and from the 7-Eleven
and the events involved can be segmented to demonstrate multiple discrete instances in
which each of the offenses complained of could be found from the evidence. However,
the Attorney General makes a convincing argument that the continuous course of conduct
exception applies here. The time frame is short. Melody and Matteucci testified the
drive to the 7-Eleven took only a minute or two at the most. And Melody testified both
times Matteucci groped her inside the car (before and after he took her out of the car) also
lasted about the same time. Melody’s cousin Jenna testified Matteucci and Melody were
gone at the 7-Eleven about twenty minutes.
Additionally, this was not a case where different defenses were offered to different
acts that were charged as a single offense. That happened in People v. Diedrich (1982)
31 Cal.3d 263, where the defendant was charged with a single count of bribery, but the
evidence showed two distinct transactions. Because the defendant had a different defense
to each of the transactions, the court held the absence of a unanimity instruction was
clearly prejudicial. (Id. at p. 283.) There was no such danger here, however, because
Matteucci testified Melody willingly went to the 7-Eleven with him and any sexual
contact between them was consensual. In sum, we conclude the continuous course of
conduct exception was applicable, and therefore the trial court was not required sua
sponte to instruct the jury with CALJIC No. 17.01.
B. Lesser Included Offenses Instructions
Matteucci contends the trial court should not have instructed the jury on lesser
included offenses to the charges of forced oral copulation in count 1 and kidnapping with
intent to commit copulation in count 2. Specifically, Matteucci argues the evidence for
lesser included offenses was minimal and insubstantial, therefore the instructions should
not have been given.
“[A] defendant may not invoke tactical considerations to deprive the jury of the
opportunity to consider whether the defendant is guilty of a lesser offense included within
the crime charged. A trial court should instruct the jury on any lesser included offense
7

supported by the evidence, regardless of the defendant’s opposition.” (People v. Barton
(1995) 12 Cal.4th 186, 190. (Barton).) However, “the trial court need not instruct on a
lesser included offense whenever any evidence, no matter how weak, is presented to
support an instruction, but only when the evidence is substantial enough to merit
consideration by the jury.” (Id. at p. 195 fn. 4.) Nor need the trial court instruct on lesser
included offenses “when the evidence shows that the defendant is either guilty of the
crime charged or not guilty of any crime (for example, when the only issue at trial is the
defendant’s identity as the perpetrator)[‘] [b]ecause in such a case ‘there is no evidence
that the offense was less than that charged.’ ” (Id. at p. 196 fn. 5 [citation omitted].)
Matteucci does not contend the convictions (misdemeanor battery and false
imprisonment) are not lesser included offenses of their respective charged offenses
(forcible oral copulation and kidnapping with intent to commit oral copulation). Rather,
Matteucci asserts Melody’s and Mattuecci’s testimonies were so at odds the jury had to
believe one or the other in its entirety, and therefore convict him of forcible oral
copulation and kidnapping or acquit him on both counts. We disagree.
The jury is not required to choose between believing either everything a witness
says or nothing a witness says. (See CALJIC 2.20; CALJIC 2.21.1 [discrepancies
“between a witness’s testimony and that of another witness . . . do not necessarily mean
that a witness should be discredited].) Moreover, the jury returned guilty verdicts on
counts 4, 5, and 6 (sexual battery of a restrained victim—which is essentially battery plus
touching of an intimate part with the intent to cause sexual arousal). (See CALJIC
10.37.) So the jury must have believed some of Melody’s testimony, even if their
rejection of the forcible oral copulation charge shows they did not believe it in its
entirety. Accordingly, the jury could have based the battery conviction in count one on
any unwanted touching of a non-intimate part by Matteucci inside or outside the car, e.g.,
when he grabbed Melody in the parking lot after she broke free, or either time inside the
car when Melody was trying to fend him off, or when he grabbed Melody’s hand and
tried to make her touch his penis.
8

The same holds for count 2. There, the jury returned not guilty verdicts on both
kidnapping with intent to commit forcible oral copulation, and the lesser included offense
of kidnapping. But the jury returned a guilty verdict on the lesser included offense of
felony false imprisonment by force. These verdicts show the jury did not believe
Matteucci moved Melody for any substantial distance either by force (kidnapping) or in
order to accomplish oral copulation (kidnapping with intent to commit oral copulation.)
Nonetheless, the jury based the false imprisonment charge on a belief Matteucci
restrained and confined Melody in his car at some point in the course of committing
sexual battery against her.
In sum, despite the conflicting testimonies of the appellant and his victim, the trial
court properly instructed, as it must, on the lesser included offenses because they were
adequately supported by the evidence. (See Barton, supra, 12 Cal.4th at 190.)
C. Juvenile Disposition Under Section 1170.17
Section 1170.17 provides a number of different sentencing alternatives for
juveniles tried and convicted in criminal court. Which sentencing alternative applies is
determined by comparing the charges the prosecutor filed against the juvenile in criminal
court to the resulting convictions. (See generally § 1170.17.) Matteucci contends two
alternatives apply to him.
First, he contends his sentences should be vacated and the case remanded for a
disposition in juvenile court, pursuant to sections 1170.17, subd. (c) and section 1170.19,
subd. (b). Under section 1170.17, subdivision (c), if the conviction offense is one that
would have made the minor eligible for transfer to criminal court pursuant to a
presumption that he or she was not a fit and proper subject to be dealt with in the juvenile
court, then the prosecution must move for a fitness hearing on the matter. If the
prosecutor does not do so, then the matter is disposed of as a juvenile or criminal matter
pursuant to section 1170.19, subdivision (b). (See § 1170.17, subd. (c).)
Section 1170.17, subdivision (c) does not apply in Matteucci’s case because,
although acquitted on the forcible oral copulation and kidnapping charges, he was
9

convicted as charged on count 3, dissuading a witness, in violation of section 136.1. And
a violation of section 136.1 is one of the predicate offenses enumerated in Welfare &
Institutions Code section 707, subdivision (b) (hereinafter “section 707(b)”) which allows
a prosecutor to file charges in criminal court. (See Welf. & Inst. § 707, subd. (b) & (d).)
Mattuecci, however, contends legislative history shows the Legislature did not
intend non-violent section 136.1 offenses to be among the “violent or serious” offenses
included in section 707(b). But we are not free to ignore the plain language of the statute,
which unequivocally includes, “Any felony offense described in section 136.1 or 137 of
the Penal Code.” (Welf. & Inst. Code § 707(b); Khajavi v. Feather River Anesthesia
Medical Group (2000) 84 Cal.App.4th 32, 46 [stating “the most powerful safeguard for
the courts’ adherence to their constitutional role of construing, rather than writing,
statutes is to rely on the statute’s plain language and noting a “court has no power to
rewrite the statute so as to make it conform to a presumed intention which is not
expressed” (citations omitted). This is not a case where application of the plain language
of the statute would generate an absurd result. (See, e.g., People v. Morris (1988) 46
Cal.3d 1, 15, disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535,
543-544, fn. 5 [“In construing legislative intent, it is fundamental that a statute should not
be interpreted in a manner that would lead to absurd results”].) It is surely not absurd for
the Legislature to deem as a serious felony any crime involving an attempt to pervert or
thwart the course or administration of justice. Thus, because Matteucci’s section 136.1
conviction is a predicate offense under section 707(b), the possibility of juvenile
disposition via section 1170.17, subdivision (c) is unavailable to him.
Second, Matteucci contends his sentences must be vacated and the case remanded
for the trial court to exercise its discretionary authority to order a juvenile disposition.
This is the alternative available under section 1170.17, subdivision (a), which provides
that if the minor is tried in adult court as the result of a discretionary filing by the
prosecution, and if the minor is convicted of an offense making that person eligible for
such mandatory or discretionary initial filing, then he or she is sentenced as an adult
pursuant to section 1170.19, subdivision (a). (See § 1170.17, subd.(a).)
10

Under section 1170.19, subdivision (a)(4), the trial court has unfettered discretion
to order a juvenile disposition in eligible cases where the prosecutor has filed charges
directly in criminal court. (See People v. Thomas (2005) 35 Cal.4th 635, 641 (Thomas)
[holding the requirement of section 1170.19, subdivision (a)(4), that the criminal court
must secure the prosecutor’s consent before it can order a California Youth Authority
commitment violates the state Constitution’s separation of powers doctrine under the
California Constitution].) Specifically, section 1170.19 provides a person “may be
committed to the Youth Authority only to the extent the person meets the eligibility
criteria set forth in Section 1732.6 of the Welfare and Institutions Code.” (Penal Code
§ 1170.19, subd. (a)(1).)
One of the eligibility criteria set forth in Welfare and Institutions Code section
1732.6 provides: “No minor shall be committed to the Youth Authority when he or she is
convicted in a criminal action for . . . [a]n offense described in subdivision (b) of Section
707, if the minor had attained the age of 16 years of age or older at the time of
commission of the offense.” (Welf. & Inst. Code § 1732.6, subd. (b)(3).) Matteucci
cannot meet this eligibility requirement because of his section 136.1 conviction, which is
a predicate section 707(b) offense that he committed when aged 17 years old.
Nonetheless, Matteucci argues we should remand because he was sentenced
before Thomas, supra, was decided. He suggests had the trial court realized it did not
require consent of the prosecutor to order a juvenile disposition, then the trial court could
have sentenced the section 136.1 wobbler offense as a misdemeanor, thereby making him
eligible for juvenile disposition. We must reject this argument because Matteucci filed a
motion pursuant to section 17(b) asking the trial court to reduce the section 136.1
conviction to a misdemeanor, and the trial court denied the motion. In sum, Mattuecci is
not eligible for juvenile disposition under any of the alternatives set forth in section
1170.17.
11

D. Sentencing Wobbler Offenses as Felonies
Matteucci contends the trial court abused its discretion by sentencing the section
136.1 wobbler offense as a felony rather than a misdemeanor. 2 The question of whether a
so-called “wobbler” offense should be sentenced as a misdemeanor is one which is left to
the sound discretion of the trial court. (People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977.) An appellate court will not overturn a trial court’s sentencing decision
unless the record clearly demonstrates the trial court abused its discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 376-377.) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (Id. at p. 377.)
Applying the appropriate standard of review, it is clear the trial court acted within
its discretion. In sentencing, the trial court noted adverse factors such as Matteucci “took
advantage of a young girl under age who was intoxicated, who is less than half his size,
and was a friend who trusted him.” Despite finding Matteucci warranted probation, the
trial court stated: “[G]iven the seriousness of the crime and the circumstances, in
granting the probation, I decided not to just do probation but to, in fact, impose and
establish what would be the prison sentence if the defendant gives up his struggle to be a
member of our community. [] And I also took it into account, in preparing the prison
sentence, that I made count three (section 136.1) consecutive under 1170.15 rather than—
and given the circumstances of the case, found that applied, rather than giving him the
one-third midterm or giving him a concurrent time on that charge.” This shows the trial
court carefully crafted its sentence, including a consecutive felony sentence for the
section 136.1 offense, in light of the nature and circumstances of the convictions. We
2
Matteucci also contends the trial court erred by sentencing the section 243.4
convictions for sexual battery as felonies rather than misdemeanors. Matteucci did not
ask the trial court to sentence those convictions as misdemeanors. Accordingly, he has
waived this claim as to the 243.4 convictions. (People v. Kelley (1997) 52 Cal.App.4th
568, 583.)
12

thus find no abuse of discretion in the trial court’s decision not to reduce the section
136.1 offense to a misdemeanor.
E. Sufficiency of the Evidence for the Section 136.1 Conviction
In his supplemental opening brief, Matteucci contends the evidence is insufficient
to support the conviction for dissuading a witness, in violation of section 136.1,
subsection (b)(1). This conviction was based on a voice mail message Matteucci left on
Melody’s answering machine stating: “Melody, I’m sorry. Just please don’t fucking tell
the cops. Please. I’m fucking begging you with my heart and soul because if I get a
fucking rape charge on my record and I go to jail, my fucking family will disown me.
Then I will fucking become a bum for the rest of my family. Just, please, I don’t care if
you hate me for the rest of my fucking life and you tell everybody that I am whatever.
Just please don’t call the cops and tell them I raped you. Please. I am begging you
because – just please don’t. That’s all. Please. I am begging you with all my heart and-”
Matteucci testified he left the message for Melody because he had received a text
message from Alex telling him “Melody was going to the cops saying I raped her so I
was fucked.”
Matteucci correctly notes section 136.1, subdivision (b)(1) makes it an offense to
attempt to dissuade a “victim of a crime” from “[m]aking a report of that victimization”
to the police. (§ 136.1, subd. (b)(1).) He contends the voice mail was not within the
scope of the statute because Melody was not a victim of rape, so his “plea for her not to
report that he raped her cannot in any sense be construed as an attempt to dissuade her
from reporting ‘that victimization’ to the police.” Matteucci asserts there “can be no
malice in pleading with a person not to report him for a ‘crime’ which was never
committed.” 3
3
Matteucci asserts and the jury was instructed malice is an element of section
136.1(b)(1). However, section 136.1(b)(1) makes no mention of malice. The language
“knowingly and maliciously” appears in section 136.1(c) and did not apply in appellant’s
case.
13

In reviewing a claim of insufficiency of the evidence, we determine “ ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citations.] We examine the record to determine ‘whether it shows evidence that is
reasonable, credible and of solid value from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court
presumes in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
Under this standard, we conclude the message left by Matteucci for Melody meets the
requirements of section 136.1(b)(1): Melody was a victim, albeit not of rape; the
message can be viewed as an attempt to prevent or dissuade Melody from going to the
police at all, not just to dissuade her from making a rape allegation; and the element of
malice, if required, was met, because the message can be viewed as an attempt to thwart
or interfere in some manner with the orderly administration of justice. (See CALJIC
7.16.) In sum, we conclude Matteucci’s section 136.1(b)(1) conviction is supported by
substantial evidence.
F. Staying the Concurrent Sentences
Matteucci notes the trial court found section 654 applied to the three sexual battery
and the false imprisonment counts, and ordered the sentences on two of the battery counts
and the false imprisonment to run concurrently with the remaining battery count.
Matteucci asserts that when section 654 applies, it precludes imposition of concurrent
sentences, so the concurrent sentences should be stayed. This is correct, (see, e.g.,
People v. Deloza (1998) 18 Cal.4th 585, 591-592 [Penal Code section 654 precludes
multiple punishments, including concurrent sentences, for a single act, or an indivisible
course of conduct]), and the Attorney General so acknowledges.
DISPOSITION
The judgment is affirmed. We remand for the trial court to modify the abstract of
judgment to reflect counts two, five, and six are stayed, pursuant to section 654.
14

_________________________
Parrilli, Acting P.J.
We concur:
_________________________
Pollak, J.
_________________________
Siggins, J.
15