People v. Isaiah B. (In re Isaiah B.)

In re ISAIAH B., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. ISAIAH B., Defendant and Appellant.

A149422

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

February 28, 2018

ORDER MODIFYING NONPUBLISHED OPINION[NO CHANGE IN JUDGMENT]

THE COURT:^*

IT IS ORDERED that the opinion filed herein on February 28, 2018, be modified as follows:

1. On page 5, the second sentence in the final paragraph is deleted and replaced with the following sentence:

As Mendez approached Isaiah to handcuff him, S.F. took out a switch blade knife from a table in the loss prevention office, opened the knife, pointed the blade at Mendez's face, and told him to "get back."

2. On page 28, at the conclusion of the final sentence in the second paragraph of section III.C., a new footnote is added that reads:

In a petition for rehearing, Isaiah also argues this court should assess his sufficiency of the evidence argument under a less deferential standard because the juvenile court's true findings potentially implicate his FirstAmendment right to free speech. Isaiah forfeited the issue by failing to clearly raise it before the petition for rehearing. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [party may forfeit argument by failing to support it with reasoned analysis]; People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2 ["it is 'too late to urge a point for the first time in a petition for rehearing, after the case ha[s] been fully considered and decided by the court upon the points presented in the original briefs' "].) In any event, Isaiah's reliance on In re George T., supra, 33 Cal.4th 620 is misplaced. In George T., the minor, who had been found to have made a criminal threat under section 422, presented a plausible First Amendment defense because the words at issue were found in an equivocal and ambiguous "dark" poem. (Id. at pp. 634-636, 638.) Furthermore, there was no history of animosity or conflict between the minor and the students receiving the poem, no threatening gestures or mannerisms accompanying the poem, and no conduct unequivocally indicating an immediate prospect that any threat would be carried out. (Id. at pp. 637-638.) Here, even if independent review applies to a violation of section 136.1, the record is not ambiguous. Isaiah's statements constituted threats not subject to First Amendment protection.

The modification effects no change in the judgment.

The petition for rehearing is DENIED.

Date__________

/s/_________ P.J.

NOT TO BE PUBLISHED IN 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.

(Contra Costa County Super. Ct. No. J16-00228; San Francisco City and County Super. Ct. No. JW16-6137)

Isaiah B. was declared a ward of the juvenile court (Welf. & Inst. Code, § 602) after it found he committed two counts of witness intimidation (Pen. Code, § 136.1, subd. (b)(2)).¹ Isaiah appeals, asserting the juvenile court (1) violated his due process rights and the separation of powers doctrine by amending the petition, on its own motion, at the conclusion of the jurisdictional hearing; (2) made findings unsupported by substantial evidence; (3) construed the statute to violate the First Amendment; (4) improperly allowed the People to fragment a single offense into two counts; (5) failed to designate his "wobbler" offenses as either misdemeanors or felonies; and (6) and imposed a vague and overbroad probation condition. We affirm.

I. STATUTORY BACKGROUND

Before we approach a rather technical discussion of the charges and facts underlying the sustained counts, some background on the statute is helpful. "Section 136.1, by one court's reckoning, defines some 20 distinct offenses." (People v. Brown (2016) 6 Cal.App.5th 1074, 1079, citing People v. Torres (2011) 198 Cal.App.4th 1131, 1137-1138.) "Section 136.1 basically prohibits four forms of witness intimidation. In subdivision (a), it forbids knowingly and maliciously preventing or dissuading a witness or victim from attending or testifying at trial. Subdivision (b) prohibits preventing or dissuading a witness or victim from (1) reporting the victimization; (2) causing a complaint or similar charge to be sought; and (3) arresting or causing or seeking the arrest of any person in connection with such victimization. All of these crimes are made a felony where the act is accompanied by force or an express or implied threat of violence upon a witness, victim, or the property of any witness, victim, or third person. (§ 136.1, subd. (c)(1).)" (People v. Hallock (1989) 208 Cal.App.3d 595, 606, italics added (Hallock).)

The statute provides, in relevant part:

"(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.

"(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶](1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization.

"(c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. [¶] (2) Where the act is in furtherance of a conspiracy. [¶] (3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section. [¶] (4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony.

"(d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section." (Italics added.)

It is settled that all section 136.1 offenses are specific intent crimes. (People v. Young (2005) 34 Cal.4th 1149, 1210; People v. Velazquez (2011) 201 Cal.App.4th 219, 229-230; People v. Brenner (1992) 5 Cal.App.4th 335, 339 (Brenner).) However, the subdivision (b) offenses do not require that the defendant act knowingly and maliciously. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320 (Upsher); People v. McElroy (2005) 126 Cal.App.4th 874, 881.)

Section 136.1 is part of "a detailed and comprehensive statutory scheme for penalizing the falsification of evidence and efforts to bribe, influence, intimidate or threaten witnesses." (People v. Fernandez (2003) 106 Cal.App.4th 943, 948 (Fernandez).) In order to avoid overlap in the application of these statutes, courts have limited these provisions to their specific language. (See, e.g., id. at p. 950; People v. Womack (1995) 40 Cal.App.4th 926, 931; Hallock, supra, 208 Cal.App.3d at p. 607.) In particular, some courts have suggested section 136.1, subdivision (b)(1) is limited to prearrest attempts to report a crime, thereby distinguishing it from section 137's application to attempts to influence the postarrest contents of a witness's testimony. (Fernandez, at pp. 948-950; Womack, at pp. 930-931; Hallock, at p. 607.)

II. FACTUAL AND PROCEDURAL BACKGROUND

In March 2016, the Contra Costa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602) alleging Isaiah, who was then 16 years old, committed three counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)).

Under a "PC 136.1(c)(1) F" heading, the petition alleges in count one: "[Isaiah], a Minor, did commit a felony, a violation of . . . section 136.1(c)(1) (ATTEMPTING TO DISSUADE A WITNESS BY FORCE OR THREAT), committed as follows: [¶] On or about December 29, 2015, at Richmond, . . . [Isaiah] did attempt to force and to attempt by an express and implied threat of force and violence against the person and property of Edward Mendez, who was a witness, victim and third person, did knowingly, maliciously, and unlawfully try to prevent and dissuade ...