Brief Bank # B-879 (Re: F 7.15 n2 [Intimidation Of A Witness: Misdemeanor Intimidation As Lesser Included Offense Of Felony Intimidation].)
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COURT OF APPEAL STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA, No. 0000000
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________________________/
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT OF LOS ANGELES COUNTY
HON. REX H. MINTER, PRESIDING
KAREN L. LANDAU, CSB # 128728
Attorney at Law
P.O. Box 13082
Oakland, California 94661-0082
(510) 338-0603
ATTORNEY FOR APPELLANT
JOHN DOE
Under Appointment by the Court of Appeal, Assisted Basis
ARGUMENT
1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR By FAILING TO INSTRUCT SUA SPONTE ON THE LESSER INCLUDED OFFENSE OF MISDEMEANOR DISSUADING OF A WITNESS.
A. Standard of Review
A trial court “must instruct on a lesser included offense . . . when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.” (People v. Melton (1988) 44 Cal.3d 713, 746 cert. den. 488 U.S. 934 (1988).)
The failure to instruct on a lesser-included offense requires reversal if it is reasonably probable that the jury would have reached a more favorable result had the instruction been given. (People v. Breverman (1998) 19 Cal.4th 142, 165; but see Vujosevic v. Rafferty (3d Cir. 1988) 844 F.2d 1023, 1027-28[reversal required unless error harmless beyond a reasonable doubt].)
B. The Record Required The Trial Court To Instruct On The Lesser-Included Offense Sua Sponte.
The information charged Mr. Doe with three counts of attempting to dissuade a witness from testifying by means of a threat. Each count was based upon a separate telephone call, two of which were made on the same day by appellant’s girlfriend, Ms. J. The second call made by Ms. J did not contain an explicit .threat of force. Rather, it was simply an insult, to wit: “Go fuck yourself.”
A violation of section 136.1 requires proof of a specific intent to affect a potential witness’ testimony. (See People v. Lyons (1991) 235 Cal App.3d 1456, 1460; People v. Ford (1983) 145 Cal.App.3d 985, 989.) Misdemeanor intimidation of a witness, a violation of section 136.1(b), is a lesser included offense of felony intimidation of a witness by force or threat, a violation of section 136.1(c). (People v. Brenner (1992) 5 Cal.App-4th 335, 340-41.)
Here, the evidence as to the first two telephone calls revealed direct threats. There was no evidence to support a conclusion that there was an attempt to dissuade a witness from testifying, but without a threat. (See id., 5 Cal App. 4th at p.341.) However, the third telephone call was simply an insult. The call did not contain any threat. A jury reasonably could have found that the call stating “Go fuck yourself,” was an attempt to dissuade a witness, but without a threat. Accordingly, there was substantial evidence supporting a conviction for misdemeanor intimidation of a witness. (See People v. Cook (1985) 33 Cal.3d 400, 404 n.3; compare People v. Ford, supra, 145 Cal.App.3d at p. 989 [statement “you punk mother fucker, we’ll get you, you’ve got kids” could be construed either as angry statement of impending revenge or as attempt to dissuade witness]; with Brenner, supra, 5 Cal.App.4th at pp. 340-41 (if jury believed witness then offense of felony intimidation by threat of force was established]; see also People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462-63.)
The failure to provide an instruction on the lesser-included offense prejudiced appellant. The second call was an insult and did not even contain a reference to the impending preliminary hearing. It is reasonably probable that had an instruction on the misdemeanor offense of attempting to dissuade a witness, appellant would have been convicted of the lesser offense. (People v. Watson (1956) 56 Cal.2d 818, 836.) Accordingly, appellant’s conviction on count 7 must be reversed.
COURT OF APPEAL STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA, No. B000000
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________________________/
APPELLANT’S REPLY BRIEF
ON APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT OF LOS ANGELES COUNTY
HON. REX H. MINTER, PRESIDING
KAREN L. LANDAU, CSB # 128728
Attorney at Law
P.O. Box 13082
Oakland, California 94661-0082
(510) 338-0603
ATTORNEY FOR APPELLANT
JOHN DOE
Under Appointment by the Court of Appeal, Assisted Basis
ARGUMENT IN REPLY
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT SUA SPONTE ON THE LESSER INCLUDED OFFENSE OF MISDEMEANOR DISSUADING OF A WITNESS.
In his opening brief, appellant argued that the trial court erred in failing to instruct the jury sua sponte on the lesser-included offense of misdemeanor dissuading of a witness as to the final telephone call, in which Mr. Doe’ girlfriend told the victims to “Go fuck yourself.” Respondent contends that the court had no duty to instruct on the misdemeanor charge, and further, that any error was harmless. (Respondent’s Brief (“R.B.”), p. 11.) These arguments are unpersuasive and this Court should reject them.
Respondent acknowledges that misdemeanor intimidation of a witness is a lesser-included offense within Penal Code section 136.1, subdivision (c). (R.B., p. 13.) Nevertheless, respondent argues that there was a lack of substantial evidence supporting the lesser-included offense. Ibid. The contrary is true. Appellant does not contest that the first two telephone calls, one made by himself, and the other by his girlfriend, were direct threats. However, the third telephone call, while admittedly insulting, did not contain any threat. Thus, the call itself, the only evidence of the offense charged, constituted substantial evidence supporting a conviction of the lesser-included offense. Respondent argues that the third call, taken in combination with the other two calls, was an implied threat of force. Respondent relies on People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344, in which the reviewing court held that a statement that a witness had “fucked up his brother’s testimony” and that he was going to talk to some guys from a gang, constituted sufficient evidence from which a reasonable jury could find an express or implied threat of force. (R.B., pp. 14-15.) But the Mendoza holding does not control this case.
While a rational jury could have found that the statement “Go fuck yourself,” considered with the other telephone calls, to be an implied threat of violence, a rational jury also could have reached a contrary conclusion. The fact that sufficient evidence exists to support the verdict does not negate the trial court’s duty to instruct on the lesser-included offense. The Mendoza case does not resolve the question whether the trial court was obliged to instruct on the lesser included offense.
Respondent further argues that the trial court was not obliged to instruct on the lesser offense, because appellant relied on a defense of misidentification and alibi. (R.B., pp. 15-16.) Respondent’s contention lacks merit.
The defense is not required to present any evidence at trial. Respondent relies on several cases involving a trial court’s duty to instruct on a lesser included offense when the defense was one of complete denial of involvement in the charged offense. (E.g., People v. Leach (1985) 41 Cal.3d 92, 106; People v. Sinclair (1998) 64 Cal.App.4th 1012, 1017-21.) Those cases are distinguishable from this case in an important respect. In the cases relied upon by respondent, the facts of the offense itself did not provide substantial evidence of a lesser included offense. Significantly, the Sinclair case relied upon People v. Medina (1978) 78 Cal.App.3d 1000, a homicide case in which the defendant denied shooting the victim, claiming instead that he was drunk at his mother’s house at the time the shooting occurred. On appeal, Medina contended that the court erred in failing to instruct the jury as to voluntary manslaughter based on diminished capacity. The court held simply that he failed to present substantial evidence of the defense of diminished capacity. The Sinclair case reached the same conclusion, based again upon a lack of substantial evidence to support the lesser offense.
In contrast here, the very words of the third telephone call (the only call at issue), provided substantial evidence of the lesser offense: the attempt to intimidate a witness absent the threat of force. While the defense to the witness intimidation charges was witness Ms. J’s denial that she made the telephone calls, the call itself provided substantial evidence of the lesser offense. Indeed, no other evidence was needed or likely to have been available. The trial court erred in failing to instruct sua sponte on the lesser offense as to the final count of witness intimidation.
Respondent further contends that any error was harmless, because it “is not reasonably probable that the jury would have convicted appellant of anything less than the charged felony.” (R.B., p. 17.) Respondent is mistaken.
It is reasonably probable that a properly instructed jury would have concluded that the final telephone call was a misdemeanor. The final telephone call, the second one made by Ms. J, was a somewhat juvenile insult. The telephone call did not refer to the impending preliminary hearing, nor to the Y’s status as witnesses. It is reasonably probable that had an instruction on the misdemeanor offense of attempting to dissuade a witness, appellant would have been convicted of the lesser offense. (People v. Watson (1956) 56 Cal.2d 818, 836.) Appellant’s conviction on count 7 must be reversed.
CONCLUSION
Based on the foregoing arguments, and on the arguments presented in the opening brief, this Court should reverse appellant’s conviction and sentence on counts 5-7. In the alternative, this Court should order the trial court to modify its judgment to stay the sentence on count 7.
Dated: March 17, 1999
Respectfully submitted,
__________________________________
KAREN L. LANDAU
Attorney for Appellant
JOHN DOE
Appointed by the Court of Appeal
