People v. Brown

Opinion

After defendant Kyle Wesley Brown and victim Rebekka Chartier broke up, he demanded that she “get friendly and get over it,” or he would “pop [her] tires.” She refused, so he punctured her tires with a knife. This violated a restraining order then in effect. Chartier called the police.

About two weeks later, defendant phoned Chartier; he threatened to “take [her] life” unless she went to the police and recanted. This violated the same restraining order.

After a jury trial, defendant was found guilty of witness intimidation, a serious felony (Pen. Code, § 136.1, subd. (c)(1); see also Pen. Code, § 1192.7,

In a bifurcated proceeding, after defendant waived a jury, the trial court found true two strike priors (Pen. Code, § 667, subds. (b)-(i)), two prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)), and three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). However, it then struck two of the three prior prison term enhancements, because they were based on the same convictions as the prior serious felony conviction enhancements. (People v. Jones (1993) 5 Cal.4th 1142 , 1153 [ 22 Cal.Rptr.2d 753 , 857 P.2d 1163 ].) Defendant was sentenced to a total of 35 years to life in prison, along with the usual fines, fees, and miscellaneous sentencing orders.

Defendant takes issue solely with his conviction for witness intimidation under Penal Code section 136.1 (section 136.1). In his view, his conduct was properly punishable as a different form of witness intimidation under Penal Code section 137 (section 137). Based on this proposition, he raises three separate contentions:

(1) Defendant could not be convicted under section 136.1, a general statute, because section 137 was a special statute applicable to the same conduct.

(2) Convicting defendant under section 136.1 rather than under section 137 violated equal protection.

(3) The trial court erred by refusing to instruct on section 137 and by precluding defense counsel from arguing that defendant was guilty under section 137.

We reject defendant’s contentions. However, we find that the sentence must be modified in one minor respect that does not affect the aggregate term. Hence, we will affirm the judgment as modified.

FACTUAL BACKGROUND

A. August 2012: Uncharged Prior Incident.

Rebekka Chartier is the mother of defendant’s two children. By August 2012, however, she and defendant were no longer a couple.

On August 5, 2012, Chartier had a restraining order served on defendant. It forbade him, among other things, to “contact ... or send any messages . . . by mail . . . [to] Rebekka Chartier.”

While the restraining order was in effect, he sent her a letter saying, “[Y]ou know how serious this is and how much time I’m looking at. . . . [Y]ou can get me out any time, just call my Public Defender .... I know you’re not stupid and I don’t have to tell you what to say. I’m sure you can figure it out and I hope you do.” She understood that he was asking her to take back her report to the police.

B. December 2013: Defendant “Pops” Chartier’s Tires (Counts 3 and 4).

On April 8, 2013, Chartier had another restraining order served on defendant, effective for three years. It forbade him, among other things, to “harass, . . . threaten, . . . destroy or damage personal or real property, [or] disturb the peace ... of Rebekka Chartier.”

On the night of December 28 to 29, 2013, Chartier took the children to the home of her friend Melody Olson in Yucca Valley, and invited defendant to come over and visit them there.

After defendant arrived, he and Chartier got into an argument. She repeatedly asked him to leave. Finally, around 12:30 a.m., he left.

Around 2:30 or 3:30 a.m., however, he came back. Chartier and Olson were out on the front porch, talking and having a couple of beers. Defendant came up on the porch and sat down. At first, he seemed friendly. He told Chartier that they should reconcile. Chartier said, “[N]o. I think you should leave.”

Defendant then volunteered that “he had c[o]me there with bad intentions.” He was already wearing black gloves; he pulled out a knife. He said “either [she] and him get friendly and get over it ... or he was going to pop [her] tires.” She replied, “If you pop my tires I’m going to call 911.” Defendant walked over to her car and used the knife to puncture two tires. He then went

C. January 2014: Defendant Threatens Chartier (Counts 1 and 2).

As of January 14, 2014, Chartier had not had any further contact with defendant. That day, she was at the salon in Redlands where she worked when she got a phone call from a man who identified himself as Jeff. However, she recognized the voice as defendant’s.

Defendant told her to take back her report to the police. He said she was sending him to prison. He added, ‘“[S]ince you’re taking my life, [I] ’ll take your life.” After the phone call, Chartier called 911.

THE INTERACTION OF SECTION 136.1 AND SECTION 137

A. Relevant Statutes.

Penal Code sections 132 through 141 define various crimes generally involving witness and evidence tampering. For our purposes, it is important to understand four of these crimes.

Section 136.1, by one court’s reckoning, defines some 20 distinct offenses. (People v. Torres (2011) 198 Cal.App.4th 1131 , 1137-1138 [ 131 Cal.Rptr.3d 439 ].) One of these is ‘“attempt[ing] to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime” from ‘“[cjausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.” (§ 136.1, subd. (b)(2).) We will refer to this, in shorthand fashion, as ‘“preventing prosecution.”

Section 136.1, subdivision (c)(1) increases the penalty for preventing prosecution—and for any other violation of section 136.1—when committed “knowingly and maliciously” and “accompanied by force or by an express or implied threat of force or violence.” (§ 136.1, subd. (c)(1).) We will refer to this as “forcibly preventing prosecution.”

Here, the jury was instructed accurately on preventing prosecution and on forcibly preventing prosecution. (CALCRIM Nos. 2622, 2623.)

According to defendant, under this rule, section 136.1 is a general statute and section 137 is a special statute, so that anybody who could be found guilty under section 137 cannot be found guilty under section 136.1. It is important, however, to focus on the elements of the particular subdivisions of sections 136.1 and 137 that are at issue.

Forcibly preventing prosecution under section 136.1, subdivision (c)(1) encompasses any violation of section 136.1, subdivisions (a) and (b) when accompanied by force—not only preventing prosecution, but also preventing testimony (§ 136.1, subd. (a)(1), (2)), preventing a report (§ 136.1, subd. (b)(1)), and preventing arrest (§ 136.1, subd. (b)(3)). Accordingly, we also need to focus on the elements of preventing prosecution. (§ 136.1, subd. (b)(2).)

Similarly, forcibly inducing falsehood in violation of section 137, subdivision (b) encompasses inducing falsehood when accompanied by force or fraud. Thus, we also need to focus on the elements of inducing falsehood (§ 137, subd. (c)).

Not every element of section 136.1, subdivision (b)(2) corresponds to an element of section 137, subdivision (c). To put it another way, section 137, subdivision (c) is not a lesser included offense of section 136.1, subdivision (b)(2). Thus, a violation of section 137, subdivision (c) will not necessarily constitute a violation of section 136.1, subdivision (b)(2). The question, then, is whether a violation of section 137, subdivision (c) will commonly constitute a violation of section 136.1, subdivision (b)(2). “Commonly” is defined as usually, ordinarily, or generally. (Oxford English Diet. Online (3d ed. 2009) <http://www.oed.com/view/Entry/37243> [as of Dec. 20, 2016].)

At one point, the court observed: “Some of the statutes in this chapter target threats of violence made by a defendant after his conviction of a felony, or in retaliation for cooperation with law enforcement. (§§ 139, 140.) Others punish efforts to prevent a victim or witness from appearing in court and giving testimony. (§§ 136.1, subds. (a)(1) & (2), (c), 138, subd. (a) . . . .) Still others punish attempts to influence the content of testimony given, as distinguished from efforts to prevent a victim or witness from appearing at all. (§ 137, subds. (a)-(c). . . .)” (People v. Fernandez, supra, 106 Cal.App.4th at p. 948, citations omitted.)

We reiterate that it is important to identify the particular subdivisions of section 136.1 and section 137 that are at issue. Significantly, in Fernandez, the court did not say into which of the listed categories section 136.1, subdivision (b)(2) fell—or that it fell into any. There was simply no issue before the court concerning section 136.1, subdivision (b)(2).

In our view, this subdivision does not fit neatly into any of the categories listed in Fernandez. It applies in narrower circumstances than section 137, subdivisions (a), (b) or (c). However, when it does apply, it applies regardless of whether the witness is prevented or dissuaded from appearing, or merely prevented or dissuaded from speaking the truth—or both.

Defendant does not dispute that his conduct fell squarely within the literal language of section 136.1, subdivision (b)(2). Rather, his argument is that, under the general-versus-special rule, section 136.1, subdivision (b)(2) must be construed, in spite of its literal language, to exclude any conduct that also falls within section 137, subdivision (c). Indeed, as he concedes, the general-versus-special rule is not triggered unless “two statutes apply to the same conduct.” (People v. Rackley (1995) 33 Cal.App.4th 1659 , 1665 [ 40 Cal.Rptr.2d 49 ].)

Nevertheless, occasionally, defendant seems to be making an argument about the literal language of section 136.1, subdivision (b)(2). For example, he states that he “told Chartier to take back the portion of the report concerning the punctured tires. He said nothing about the portion of her statement in which she reported the violation of a restraining order.” “Thus, [defendant] ’s actions during the telephone call were not to dissuade Chartier from causing a complaint to be made, but instead were to induce her to change the content of the information initially provided to the police. The evidence, therefore, suggested he was not, as respondent contends, trying to derail the prosecution in its entirety.” (Italics added.)

Defendant also argues: “Chartier reported the incident to the police on December 18, 2013. Based on her report alone, a criminal complaint could have been filed. [Defendant] waited nearly a month before calling Chartier. Thus, [defendant]’s request that she take back the portion of the report concerning the tires was not aimed at preventing a complaint from being filed . . . .” (Italics added.)

Defendant asks us to assume that, simply because a complaint could have been filed, he believed a complaint had been filed. Under the substantial evidence rule, however, we must draw every reasonable inference favorable to the judgment. (People v. Covarrubias (2016) 1 Cal.5th 838 , 890 [ 207 Cal.Rptr.3d 228 , 378 P.3d 615 ].) It is more reasonable to suppose that, because defendant asked Chartier to go to the police and withdraw her report—rather than to go to the prosecutor and withdraw any charges—tie believed that a complaint had not yet been filed. Indeed, it is undisputed that, in fact, the complaint was filed later.

We therefore conclude that there was substantial evidence to support defendant’s conviction under section 136.1, subdivision (c)(1), and the prosecution was not required to proceed under section 137, subdivision (b) instead.

C. Violation of Equal Protection.

Defendant contends that his prosecution and conviction under section 136.1 violated equal protection, because a similarly situated offender who was prosecuted and convicted under section 137 would be subject to markedly lesser punishment.

“[N]either the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging under one such statute and not the other, violates equal protection principles. [Citation.]” (People v. Wilkinson (2004) 33 Cal.4th 821 , 838 [ 16 Cal.Rptr.3d 420 , 94 P.3d 551 ].)

In Wilkinson, the California Supreme Court held that the defendant may not complain that she was charged with battery against a custodial officer

Defendant does argue that the decision to charge him under section 136.1 rather than section 137 was arbitrary and irrational. However, he has not made any showing of this. We cannot just presume that the prosecutor acted arbitrarily. Hence, defendant’s equal protection claim must fail.

D. Denial of Instructions and Argument on Forcibly Inducing Falsehood.

Defendant contends that the trial court erred by refusing to instruct on section 137 and by precluding his counsel from arguing that defendant was guilty under section 137 rather than under section 136.1.

1. Additional factual and procedural background.

At an instructions conference, defense counsel argued that defendant was guilty, if at all, under section 137. He requested an instruction on section 137, subdivision (b). He also requested an instruction that “the specific intent to prevent or dissuade a witness from testifying, or to prevent [a witness] from making a law enforcement report at all, is not compatible with the specific intent to influence or shape the [testimony] that the witness gives.”

In support of his request, defense counsel cited People v. Womack (1995) 40 Cal.App.4th 926 [ 47 Cal.Rptr.2d 76 ]. Womack held that a forcible attempt to prevent a witness from testifying at all, in violation of section 136.1, subdivisions (a) and (c)(1), does not constitute a forcible attempt to induce a witness to give false testimony in violation of section 137, subdivision (b). (Womack, supra, at pp. 929-934.) Defense counsel argued that Womack was “on point” because defendant “was attempting to . . . have [Chartier] . . . give false information.”

The prosecutor opposed the request, arguing, “He is not charged with 137. If [the] defense wants to argue that the People haven’t met their burden of

Defense counsel responded, ‘“[Wjhile I can argue it to the jury . . . , they can just disbelieve me because I can’t point to any part of the jury instruction

The trial court declined to give the requested instructions.

In closing argument, defense counsel started to talk about Womack. The prosecutor objected. The trial court ordered defense counsel not to refer to Womack. It also ordered him not to “bring in any law other than what’s been given to the jury in this case.”

2. Discussion.

As discussed in part IIB., ante, inducing falsehood, in violation of section 137, subdivision (c), is not a lesser included offense of dissuading prosecution, in violation of section 136.1, subdivision (b)(2). Rather, as defendant concedes, it is a lesser related offense. “Lesser included offenses are distinguished from lesser related offenses, which ‘merely bear some relationship’ to another offense. [Citation.]” (People v. Robinson (2016) 63 Cal.4th 200 , 207, fn. 3 [ 202 Cal.Rptr.3d 485 , 370 P.3d 1043 ].)

The strategic concerns of a defendant with regard to instructions on a lesser related offense are well known. When the jury is instructed only on a greater offense, and it has some doubts about an element of that offense, it may be tempted to avoid acquitting the defendant entirely by resolving its doubts in favor of conviction. Thus, if it is instructed on a lesser related offense, as a third option, it may be less likely to convict on the greater—but also less likely to acquit the defendant entirely.

Under People v. Geiger (1984) 35 Cal.3d 510 [ 199 Cal.Rptr. 45 , 674 P.2d 1303 ], a trial court had a duty to instruct, sua sponte, on any lesser related offense. In 1998, however, People v. Birks (1998) 19 Cal.4th 108 [ 77 Cal.Rptr.2d 848 , 960 P.2d 1073 ] overruled Geiger. Now, “[a] defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties. [Citations.]” (People v. Jennings (2010) 50 Cal.4th 616 , 668 [ 114 Cal.Rptr.3d 133 , 237 P.3d 474 ].)

As defendant candidly concedes, People v. Valentine (2006) 143 Cal.App.4th 1383 [ 49 Cal.Rptr.3d 948 ] rejected a similar argument. There, the defendant was convicted of robbery. (Id. at p. 1385.) On appeal, he argued that the trial court erred by denying his request for an instruction on receiving stolen property. (Id. at p. 1386.) He argued that “the omission amounted to a failure to instruct on a defense theory—that he received property he knew to be stolen but that he did not steal it.” (Id. at p. 1387.)

The appellate court disagreed, stating, in part: “Prior to Birks, one accused of robbery could offer evidence that he received the proceeds of the robbery knowing them to be stolen. Thereafter he would be entitled to an instruction on the lesser related offense shown by the evidence to have been committed and urge the jury that he be convicted of that lesser crime. [Citation.] He could not, however, argue for acquittal of both the greater and the lesser related offense. Valentine acknowledges that Birks overruled Geiger and that he is neither entitled to an instruction on a lesser related offense nor to urge his conviction for that offense. Rather, he wants the instruction so that he can argue for an outright acquittal! To paraphrase Winston Churchill, this is the sort of thing up with which we will not put.

“Moreover, the offense of receiving stolen property is not a defense to robbery; rather, it is a theory of criminal liability based on a different offense. Thus, the failure to give the instruction did not impinge on Valentine’s right to present a defense to robbery. It simply reflected the fact that the prosecutor chose not to file on the other charge.” (People v. Valentine, supra, 143 Cal.App.4th at pp. 1387-1388.)

Defendant tries to hang his hat on the hook of a single sentence in Valentine. The court did also state: “We do not suggest . . . that Valentine could not argue to the jury that his culpability was as one who was in possession of stolen property but not one who committed a robbery.” (People v. Valentine, supra, 143 Cal.App.4th at p. 1388.) Nevertheless, it held that the defendant was not entitled to an instruction on receiving stolen property. Here, similarly, defendant was not entitled to an instruction on forcibly inducing falsehood.

Defendant’s point may be that, even if he was not entitled to an instruction, his counsel should have been allowed to argue that he was only guilty of

Miller, J., and Slough, J., concurred.

Appellant’s petition for review by the Supreme Court was denied March 15, 2017, S239655.