People v. Brown

6 Cal.App.5th 1074

212 Cal.Rptr.3d 187

The PEOPLE, Plaintiff and Respondent,

v.Kyle Wesley BROWN, Defendant and Appellant.

E064318

Court of Appeal, Fourth District, Division 2, California.

Filed December 20, 2016

Certified for Partial Publication.^*

Jennifer A. Gambale, Irvine, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

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, subd. (c)(37) ); vandalism, a misdemeanor (Pen. Code, § 594, subd. (b)(2)(A) ); and two counts of violation of a court order, a misdemeanor (Pen. Code, § 166, subd. (a)(4) ).

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.

I 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.

Around that time, they got into an argument. While Chartier was making a phone call, defendant grabbed the phone out of her hand and threw it to the ground, smashing it to pieces. She tried to open the door to leave the room, but defendant tried to push it closed. When she managed to open the door, she ran out to her car, drove to a gas station, and called 911.

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 28-29, 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 back to his car and drove away. Meanwhile, Chartier called 911. When an officer responded, she told him about the vandalism.

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.

II THE INTERACTION OF SECTION 136.1 AND SECTION 137

A. Relevant Statutes .

Penal Code sections 131 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 is entitled, as relevant here, "Intimidation of witnesses and victims...." By one court's reckoning, it 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 "[c]ausing 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.)

Section 137 is entitled, "Influencing testimony or information given to a law enforcement official." It defines three distinct offenses. One of these is "knowingly induc[ing] another person to give false testimony or withhold true testimony ... or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official...." (§ 137, subd. (c).) We will refer to this as "inducing falsehood."

Section 137, subdivision (b) increases the penalty for inducing falsehood when committed "by force or threat of force or by the use of fraud...." We will refer to this as "forcibly inducing falsehood."

Forcibly preventing prosecution in violation of section 136.1 is a serious felony. (§ 1192.7, subd. (c)(37) ; People v. Anaya (2013) 221 Cal.App.4th 252, 270–271, 164 Cal.Rptr.3d 216.) Accordingly, defendant, as a third-striker, was subject to a sentence of 25 years to life for this crime. (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).)

Forcibly inducing falsehood, on the other hand, is a felony (§ 137, subd. (b) ) but not a serious or violent felony. (See §§ 667.5, subd. (c), 1192.7, subd. (c).) Accordingly, had defendant been convicted of this crime, he would only have been subject to a sentence of four, six, or eight years. (§§ 137, subd. (b), 667, subds. (e)(1), (e)(2)(C), 1170.12, subds. (c)(1), (c)(2)(C).)

B. The General-Versus-Special Rule .

Defendant contends that that he had to be charged and convicted, if at all, under section 137, rather than section 136.1.

"[I]f a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute.... ‘The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.’ [Citation.]" (People v. Murphy (2011) 52 Cal.4th 81, 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216 ; see also Code Civ. Proc., § 1859.)¹

"Absent some indication of legislative intent to the contrary, th [is] rule applies when (1) ‘each element of the general statute corresponds to an element on the face of the special statute’ or (2) when ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ [Citation.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute." (People v. Murphy...