79 Cal.App.5th 1093
Cal. Ct. App.2022Background
- In May 2019 Jesse Johnson entered his estranged wife’s home, an argument escalated in front of their daughters, and police were called; officers found a loaded handgun in a downstairs bedroom.
- Johnson made at least two distinct threats: to his family that he would “blow his brains out” if police came, and to his wife that “we’d both be dead” if she called the police.
- Prosecution introduced 911 and police-interview recordings, jail calls, and testimony from the wife and daughters; defense presented Johnson’s account that he contemplated suicide but did not threaten others.
- Johnson was convicted on multiple counts including two counts under Penal Code §136.1(c)(1) (counts 2 and 5) for dissuading a witness by force or threat of force; the jury found firearm allegations true on count 1 and that a firearm was used on count 5.
- On appeal Johnson challenged (1) sufficiency of evidence for count 5 (threat of self-harm as a §136.1(c)(1) “third person” threat), (2) instructional error on count 2, (3) classification of count 2 as a violent felony on the abstract, and (4) imposition/collectibility of the booking fee under later legislation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Sufficiency for count 5 (§136.1(c)(1)) | The People argued Johnson’s threat to kill himself functioned to dissuade witnesses and thus qualified as a threat to a “third person.” | Johnson argued a threat of self-harm is not a threat upon a witness, victim, or “third person,” so no substantial evidence supports a §136.1(c)(1) felony. | Reversed to lesser offense (§136.1(b)(1)): a threat of self-harm does not constitute a threat upon a “third person” under §136.1(c)(1). |
| 2) Instructional error on count 2 (CALCRIM 2623 wording) | The People argued Johnson forfeited any instructional claim by failing to object and that any wording difference did not affect substantial rights. | Johnson argued the instruction misstated the statute by allowing conviction based on threats of self-harm (i.e., not limited to threats against a "third person"). | Forfeiture: no relief. Court found any instructional ambiguity did not prejudice Johnson given evidence and prosecution emphasis on threat to wife. |
| 3) Classification of count 2 as a "violent felony" on abstract | The People agreed the violent-felony label was erroneous because no gang enhancement, great bodily injury allegation, or firearm use was proved for count 2. | Johnson sought correction of the abstract to remove the violent-felony classification. | Abstract must be corrected: count 2 is not a violent felony under §667.5. |
| 4) Booking fee collectibility (Gov. Code §29550 et seq. / AB 1869) | The People conceded unpaid balance is unenforceable but argued vacatur not required because fees automatically became uncollectible. | Johnson sought vacatur of unpaid booking fee balance per AB 1869 and Gov. Code §6111. | Vacate unpaid balance of the booking fee as of July 1, 2021; portion of judgment imposing those costs must be vacated. |
Key Cases Cited
- People v. Hillhouse, 27 Cal.4th 469 (explains substantial-evidence review standard)
- People v. Lopez, 31 Cal.4th 1051 (statutory construction, give words ordinary meaning)
- People v. Reyes, 56 Cal.App.5th 972 (purpose of §136.1 is to promote cooperation with law enforcement)
- People v. Virgil, 51 Cal.4th 1210 (failure to object to jury instruction forfeits appellate review)
- People v. Brenner, 5 Cal.App.4th 335 (reducing conviction to lesser included offense)
- People v. Greeley, 70 Cal.App.5th 609 (unpaid booking fees rendered unenforceable and judgment portions vacated under AB 1869)