Opinion Bank # O-270 (Re: F 7.15 n2 [Intimidation Of A Witness: Misdemeanor Intimidation As Lesser Included Offense Of Felony Intimidation].)
NOTE: The text of the footnotes appear at the end of the document.
(People v. James, No. B120233 [Los Angeles Superior Court, Nos. SA 028659, 027887])
COURT OF APPEAL STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
MICHAEL A. JAMES,
Defendant and Appellant.
EXCERPT FROM UNPUBLISHED OPINION
1. Failure to give lesser included offense instruction was error.
James contends the trial court erred by not instructing the jury sua sponte, with regard to count 7 only, on misdemeanor witness intimidation as a lesser included offense of felony witness intimidation. This claim has merit.
Section 136.1, subdivision (a), provides, in Pertinent Part: “Except as provided in subdivision (c), any person who does any of the following is guilty of a misdemeanor: [¶]… [¶] (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.” Violation of this subdivision is a misdemeanor. Subdivision (c) of section 136.1 provides: “Every person doing any of the acts described in subdivision (a) … 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.”
Misdemeanor witness intimidation is a lesser included offense of felony witness intimidation because the felony cannot be committed without committing the misdemeanor, (People v. Brenner (1992) 5 Cal.App.4th 335, 341.) “California law requires a trial court sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) James argues a reasonable juror could have determined that Lisa’s second phone message, which said simply “Go fuck yourself,” constituted only misdemeanor witness intimidation because it was an attempt, unaccompanied by any implied threat of force or violence, to dissuade the Youns from testifying.
Citing Brenner, the People argue the lesser included offense instruction was not required because James’s defense was that Lisa had not left any phone messages; thus, there was no evidence supporting a verdict on the lesser charge. We disagree. Brenner affirmed a trial court’s refusal to give a lesser included offense instruction. But in Brenner the victim testified the defendant had said that “`if I called the police, he would kill me,'” and another witness testified the defendant had talked ” ‘abou`hurting or wanting to kill [the victim], things like that. . . if he went to go get the police . . . .'” (People v. Brenner, supra, 5 Cal.App.4th at p. 341.) The prosecution evidence in Brenner was unequivocal because the defendant had expressly threatened the victim with violence if he went the police. Here, on the other hand, the prosecution evidence was equivocal because Lisa’s second message was not an express threat, and the existence vel non of an implied threat had to be inferred from the broader factual context.
As noted above, felony witness intimidation requires either “an express or implied threat of force or violence.” There is, of course, no talismanic requirement that a defendant must say “Don’t testify” or words tantamount thereto, …. As long as his words or actions support the inference that he… attempted by threat of force to induce a person to withhold testimony [citation], a defendant is properly’ convicted of a violation of section 136. 1, subdivision (c)(1). (People v. Thomas [(1978)] 83 Cal.App.3d 511, 514 [in hallway outside courtroom defendant cursed at and threatened witness and yelled, `”You put my mother in jail, you had my mother picked up'”].)” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344; see also People v. Lyons (1991) 235 Cal.App.3d 1456, 1461 [although defendant’s letter pretended to be talking about third person, it was obviously aimed at addressee-victim].)
The People argue that “[a]fter receiving two explicit threats that they would be killed if they testified, the third call, while void of an explicit threat of specific harm, clearly supported an inference that they would be harmed. Indeed, in light of their experience, the Youns considered “Go fuck yourself!” to be a threatening message, and in fact felt threatened by the call.” But the offense of witness intimidation is not determined from the victim’s point of view; for example, a threat is punishable whether or not it actually dissuades a potential witness from testifying. (See People v. Ford (1983) 145 Cal.App.3d 985, 990 [“Once the crime has been committed, it makes no difference whether the witness does or does not testify. In this respect it is like a charge of bribery…. The crime of bribery is complete when the defendant makes the offer with a corrupt intent. [Citation.]”.)
Moreover, although it might seem improbable that James, having already made an explicit death threat, would have de-escalated into making a mere childish insult, James himself made only the first phone call. It was the prosecution’s theory that it was Lisa, at James’s behest who made the second and third calls. A reasonable jury might have concluded Lisa’s second message constituted only misdemeanor witness intimidation because she did not repeat her earlier threat of violence. The point is that Lisa’s second message had to be interpreted by the finder-of-fact.
“The sua sponte duty to instruct fully on all lesser included offenses suggested by the evidence arises from California law alone. [A] failure to fulfill this duty is not a structural defect in the proceedings, but mere misdirection of the jury, a form of trial error committed in the presentation of the case. Hence, by virtue of the California Constitution, reversal is nat warranted unless an examination of `the entire cause, including the evidence,’ discloses that the error produced a `miscarriage of justice.’ (Cal. Const., art. VI, § 13.) This test is not met unless it appears `reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Breverman, supra, 19 Cal.4th at p. 149.)
The People argue any error here was harm less under Breverman because “the evidence established all elements of the felony crime of dissuading a witness. If the jury believed Otherwise, they could have found appellant not guilty on this count.” But the reason a trial court is required to instruct on lesser included offenses is precisely to avoid such an all-or-nothing choice. [I]nsofar as the duty to instruct applies regardless of the parties’ requests or objections, it prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘Unwarranted all-or-nothing choices,’ encourages ‘a verdict … no harsher or more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth ascertainment function [citation]. “These policies reflect concern [not only] for the rights of persons accused of crimes [but also] for the overall administration of justice.’ [Citation.]” (People v. Breverman, supra, 19 Cal.4th at p. 155.)
The equivocal nature of Lisa’s second message — in which she merely said “Go fuck Yourself” — forced the jury to interpret her statement. Her words might have constituted an implied threat (making James guilty of felony witness intimidation), or a mere insult (making James innocent of witness intimidation), or an attempt to dissuade without any accompanying threat (making James guilty of misdemeanor witness intimidation) [Footnote 1] The jurors had to evaluate Lisa’s statement in the context of the entire case, but they could not have fully done so without being given the option of finding that the statement constituted misdemeanor witness intimidation. (See People v. Ford, supra, 145 Cal.App.3d at pp. 989-990 [the words “`You Punk mother fucker, we’ll get you, you’ve got kids,'” could be interpreted as a “statement of impending revenge: `You did this to me and you will pay for it.’ If this is the proper interpretation, the crime [§ 136. 1 ) was not committed”; alternatively, “the proper interpretation could be: `You did this to me and if you do it again you will pay. You better not testify in the future or we’ll get your kids.’ If the jury found this interpretation, defendant has violated [§ 136.1].”].)
James’s conviction on count 7 must be reversed for instructional error.
Footnote 1: It appears there may have been some question at trial about the content of this statement. In their appeal brief, the People (after noting the phone messages had not been transcribed) assert the words spoken are not in dispute and they agree with James that the statement was “Go fuck yourself.” However, during closing argument, the prosecutor asserted Lisa’s tone of voice was different during her second call than during her first call, and that what she said was “Don’t fucking show.”