THE PEOPLE,
A160025
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 6/17/22
CERTIFIED FOR PUBLICATION; (Contra Costa County Super. Ct. No. 51913912)
As to his count 5 conviction (based on the statement to his family that he would blow his brains out), Johnson contends there was insufficient evidence as his threat of self-harm did not constitute substantial evidence of harm to any “witness or victim or any third person,” as required by
As to his count 2 conviction (based on the statement to his wife that they would both be dead if his wife called the police), Johnson contends the court committed instructional error by incorrectly stating the law under
In addition, we conclude that Johnson‘s count 2 conviction was improperly classified on his abstract of judgment as a violent felony. We also conclude that any unpaid balance of the booking fee imposed on Johnson must be vacated based on recent legislation.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of May 26, 2019, Johnson entered the two-story Antioch house where his wife, Jane Doe 1, lived with their four daughters: P., S.J., S., and Jane Doe 2, who ranged in age from 22 to 15 years old. At the time, Johnson and Doe 1 were married but separated. That morning, the couple got into an argument that became so heated it woke the house. Someone called the police, and Johnson was later arrested.
Johnson‘s jury trial disclosed the following evidence:
A. Prosecution‘s Case
1. May 26, 2019
On May 26, 2019, Doe 2 called 911 from her bedroom closet on the second floor of the house. A recording of the call was played to the jury. On the call, Doe 2 explained that she woke up when she heard her mother screaming and said her father was hitting her mother. Johnson could be heard yelling expletives in the background. When asked if her father had been drinking or doing drugs, Doe 2 responded, “I‘m not sure. He doesn‘t live here anymore.” She twice repeated that her father no longer lived at the house and that she did not know where he was living. After the operator stated officers were on the way, Doe 2 stated she thought her father had a gun because “a second ago he just said that if the police come here he‘s gonna he‘s gonna blow his brains out.” The 911 operator ended the call when she heard officers talking to Johnson downstairs.
Officer Robert Ibanez, one of the multiple responding officers who testified at trial, had been dispatched to the Antioch house because the reporting party had called and said her father Johnson was out of control, he possibly had a gun, and if police came he would blow his brains out. When Doe 1 opened the door for the officers, she was crying and appeared to be in fear. Officer Ibanez entered the house and called out for Johnson, who emerged from the downstairs bedroom. He asked Johnson to take a seat on a couch, which he did. While Officer Ibanez stayed with Johnson, other responding officers made contact with Johnson‘s wife and daughters.
Officers Denny Barrera and Kevin Tjahjadi, both of whom testified at trial, located Doe 2 upstairs. Officer Barrera thought she looked upset, scared, and
Doe 2 returned to her room and called 911 from the closet. From there, she heard more yelling. She confirmed her father said that if the police came he would blow his head off. When Officer Barrera followed up about her belief that her father had a gun, she responded, “I‘m pretty sure he does . . . [¶] . . . I‘ve seen it before.” She had last seen the gun a week or two earlier. She thought the gun might be in her mother‘s room, and pleaded, “Y‘all can get him outta here. Right? . . . [¶] . . . I just had to be sure ‘cause he‘s, like, really manipulative.” At the end of the exchange, Doe 2 repeated, “I really wish I weren‘t scared. [¶] . . . I wish I weren‘t scared.”
During Doe 2‘s interview, Officer Tjahjadi, who was standing near her bedroom door, saw S.J. pacing in the hallway and attempting to peek into Doe 2‘s room. Officer Tjahjadi approached S.J. and quietly asked, “Where‘s the gun?” S.J. tilted her head left towards her shoulder. Officer Tjahjadi took this to mean the gun was downstairs or she was not ready to share any information because her father was there. When asked again about the gun, S.J. whispered, “When he leaves.” She appeared too scared to tell the officer where the gun was as long as her father was downstairs.
After they finished speaking with Doe 2 and removed Johnson from the house, Officers Tjahjadi and Barrera made their way to the downstairs bedroom and found a loaded handgun atop a laundry bin filled with clothes.
Officer Barrera subsequently interviewed S.J. Their conversation was recorded and played to the jury. Asked about the firearm they found, S.J. said she saw it “[w]hen [her father] told [her] if [the police] came he was going to blow his brains out.” Her father had come downstairs and pointed the gun at himself. S.J. and another sister ran downstairs and asked him to put the gun away because they did not want him to shoot himself or their mother. She saw him deposit the handgun on the clothes in the downstairs room.
Officer Daniel Fachner, another responding officer who testified at trial, spoke with Doe 1 that morning. Doe 1 was crying throughout the recorded
This incident was not the first time they had a physical altercation. The police had been called before, but Johnson had never been arrested. Johnson regularly threatened that if he ever got arrested, he would return and kill her. Doe 1 said she needed to relocate because a protective order would just make him angry and he would disregard it. She did not know where Johnson was living at the time. Asked whether she would cooperate with the District Attorney if Johnson were charged, she replied, “I‘m afraid.”
2. Further Investigation
A couple of days after Johnson‘s arrest, Doe 1 spoke with an Antioch Police Department detective, who recorded the interview, which was played to the jury. Doe 1 noted that she had actually called the police earlier because she wanted to confirm that Johnson was still being detained. She needed to know his whereabouts because she was trying to relocate before his release since she knew “he‘s gonna come back.”
Asked to explain what happened two days earlier, Doe 1 recounted that Johnson entered the house around 4 a.m. She was lying in her bed when he came into her room, and he threatened that both of them would be dead if she contacted the police. He accused her of betraying his trust by talking to his mistress‘s husband. Since he had been drinking, Doe 1 did not understand much of what Johnson was saying.
While Doe 1 was still in bed, Johnson picked up her phone and shoved it in her face. When she jumped out of bed and tried to run out of the room, he grabbed her by the neck. She started screaming. Johnson then pressed his forearm on her neck, strangling her. She was in pain and could not breathe. Hearing the commotion, their children rushed into the room. When they entered, Johnson still had his arm around Doe 1‘s neck. To get free, Doe 1 bit one of Johnson‘s fingers. The children begged him to leave. In the middle of this turmoil, they heard the police knock on the door. Johnson ran into the downstairs room, and Doe 1 let in the police. Asked whether she believed his
Days later, Doe 1 and the detective spoke again, and this interview was also recorded and played to the jury. Doe 1 confirmed that Johnson had come into the room and told her that if she called the police she would be dead before they got there. Asked why he would say this, she explained that he was angry because they had broken up and she refused to reconcile. A couple of days before he came to the house, they had spoken on the phone. Johnson told Doe 1 that he did not want to break up and was not going to let her go. Doe 1 told him if he came over to the house, she would call the police. When he came over without her permission, he continued to threaten her, repeating that if she called the police, she or they would both be dead before the police arrived.
3. Recorded Jailhouse Calls
Four recorded jailhouse calls involving Johnson were played to the jury. In a May 30, 2019 call with Doe 1, Johnson asked who called the police on him. Doe 1 claimed the neighbors did, but Johnson did not believe her because someone told the police about the gun, about which the neighbors would not have known. Johnson believed Doe 2 made the call. He wished he could put whichever child had called “back in [his] nuts.” When Doe 1 reminded Johnson that he had been yelling and screaming about how he was going to shoot her, Johnson responded, “I said myself. That‘s what I said.”
In a July 25, 2019 call with a woman named L.J., with whom Johnson was in a relationship, Johnson explained that he had been suffering from depression for a long time. He said the “gun thing” was on him, and he was not going to “do anything to anybody.” He had put the gun to his head, his hearing muffled, and he started to count intending to pull the trigger on three. But someone grabbed his arm and said to him, “I love you.” At that point, he could hear again and put the gun down.
In a July 28, 2019 call with one of his daughters, Johnson complained that Doe 2 said he had hit her. He stated, “You know I ain‘t never hit y‘all.” The daughter responded, “You did dad.” She also reminded Johnson that he hit both S.J. and Doe 2 that morning. He claimed that it was an accident, he did not try to hit anyone, and he was just talking with his hands.
In a September 20, 2019 call with L.J., Johnson revealed that he had “sent out instructions to everybody” to study so they could have “matchin’ lines in [his] play.” He explained that he “outlined every single detail” and the script
4. Family Members’ Trial Testimony
At Johnson‘s trial, which took place mid-October 2019, Doe 1, Doe 2, and S.J. testified, often inconsistently with their prior statements to police.
Doe 2 testified that in May 2019, she was living in the family‘s Antioch house with her mother, father, and sisters. She confirmed that it was her testimony that Johnson was living at the house the day he was arrested.
Around 4 a.m. on May 26, a very loud noise from her mother‘s room woke her. When she went over there, she saw her father, mother, and S.J. She was not surprised to see her father, nor was she scared to enter the room. At some point she heard a man and woman screaming, but she did not remember much about what happened after she reached the room. While in the room, she never saw her father strangle or choke her mother or hit one of her sisters. She did not remember if he made any physical contact with her mother or sisters that morning. Her father did not hit or make any physical contact with her. At some point, her mother walked, not ran, out of the bedroom, and Doe 2 returned to her room.
When she got to her room, she called 911 from her closet. She made the call because she was angry and “[t]here was just a lot going on. Chaos, I guess.” She said there had been a lot of yelling, and that alone made for a chaotic environment. Because she was angry, she wanted her father out of the house that morning. While on the 911 call, she did not hear anything her father may have said. She did not remember her father ever saying that if the police came he would blow his brains out.
Doe 2 denied that she was ever fearful. She never thought her father had a gun and did not remember if she told the 911 operator he did. Later, she acknowledged it was possible her father had a gun but did not know or could not remember the basis for this belief. She had never seen her father with a gun before. She declined to describe her father as manipulative. She never saw him being physically violent with her mother.
Doe 1 testified that she had known Johnson for over two decades. They were married but separated, having broken up about a month prior to the May 26 incident. Johnson still had belongings in the Antioch house and periodically stayed there.
In the early morning hours of May 26, Doe 1 was sleeping in her upstairs bedroom. She woke when Johnson opened the door and walked in the room. She told him not to come over, but it was his place of residence. He was drunk, rambling, visibly upset, and angry but not violent or belligerent. She was angry he was there at that hour starting an argument. She did not recall Johnson ever saying to her that if she called the police, they would be dead before officers arrived. At some point, he pushed her phone towards her, and Doe 1 got out of bed to leave the room. Johnson grabbed her by the arm to keep her there. He got behind her and put his forearm on her neck. In that position with his hand close to her mouth, she bit him and was able to get away. As she was leaving, the children entered the room. Johnson and the children screamed and yelled, making for a chaotic scene. Doe 1 went downstairs to the kitchen to keep her distance from Johnson. Eventually, Johnson also came downstairs. Around that time, the police arrived, and she opened the door.
Doe 1 could not recall if Johnson ever struck or swung at her. She could not say that Johnson strangled her at any point. Nor could she say he did anything to deliberately impede her breathing, though she remembered having trouble breathing in her struggle to leave the room. She did not see Johnson strike any of their daughters.
Doe 1 added that the statement she gave the police that morning probably was not completely accurate because it was “heat of the moment.” Twice, she stated she was not fearful of Johnson that night, only angry. She did not recall asking an officer for an emergency protective order. She only asked for a temporary protective order so that she could put some physical space between herself and Johnson. She never saw Johnson with a gun that night either. After hearing her initial recorded interview with police on the scene, she explained that her statement regarding other instances of physical violence was not accurate. Her statement that she was scared was also not accurate. She had never been scared of physical retaliation from Johnson were she to call the police. She was just fed up with arguing with Johnson and exposing their children to that tension. In addition, Doe 1 never saw Johnson hold a gun to his head that day. Doe 1 stated she would not lie to protect Johnson, and none of her testimony reflected any effort to protect him. She and her daughters never came up with a plan for what testimony to give at trial.
After Doe 1 left, S.J. and P. went into the hallway with her father. Doe 2 was standing in one of the doorways. Her father, who was in the hallway, and her mother, who was at the top of the stairwell, continued to yell at each other. Eventually, they went downstairs. S.J. saw lights from outside and her mother went to the door. She heard her father from the guest bedroom say he was going to shoot himself. At no point, however, did she see him with a gun. After her father threatened to harm himself, she heard P. tell him she loved him. Her mother let in the officers.
S.J. never saw her father holding a gun but later saw the gun when talking with the police. She never approached an officer to get his attention or told anyone there was a gun in the house. Rather, she had been approached by an officer who told her that he knew there was a gun in the house. She brought him to the downstairs bedroom and told him if there were a gun it would be there. She thought as much because her father was in that room when she heard him say he was going to hurt himself. She told the officer she did not know where in the room the gun might be. When the officer pointed to a bucket, she replied that he could check there but she would not touch anything.
B. Defense Case
Johnson testified on his own behalf. On May 26, he was living at the Antioch house and had been living there for about five years. He spent the night there about six nights that month, usually sleeping in the master bedroom. His belongings were there as well.
He acknowledged that Doe 1 had told him a couple of days earlier to not come by the house, but she had said similar things before and he had still been over. Besides, he had a plan to clean himself up and attend church with his daughters as a surprise. If the opportunity arose, he would also try to clear things up with Doe 1.
After Johnson let himself in the house, he walked towards his bedroom. The door was ajar, and he walked right in and saw Doe 1 awake. They exchanged greetings. He then addressed the “elephant in the room.” He had
Their argument became very loud. When Johnson turned he saw his two oldest daughters, P. and S.J., yelling in the doorway. His other two daughters also came over. He said, “It was just so much chaos. Everybody‘s just yelling back and forth. Yelling, yelling, yelling, yelling, yelling.” He screamed for everyone to shut up. He tried to explain what was happening but could not due to all the yelling.
Doe 1 left the room, passing her daughters standing in the doorway. Johnson pushed his way through his daughters and followed Doe 1. In the hallway, he kept yelling at Doe 1, who stood atop the stairwell. Eventually, Doe 1 went downstairs, the children scattered, and he went into the downstairs bedroom, “the only sanctuary [he] knew in the house.” There, he thought about taking his life. He explained, “I was really, really, really upset. I was cryin’ and very irate at the time. I felt like I was havin’ some kind of emotional attack.” He retrieved a gun from a drawer, put the gun to the back of his head, and began to count. Suddenly, he heard somebody screaming, “No,” and telling him, “I love you, I love you.” He felt someone pull his arm down, and his arm went limp. All the noise of the house, which had been muffled, became loud again. He placed the gun underneath some clothes in a basket. He heard the door and a man in the living room call his name. He wiped his face, got himself together, and calmly walked out to meet the officer.
Johnson did not recall or did not remember what he said to Officer Ibanez that morning. He likely denied saying he was going to shoot himself because
Johnson stated that he never threatened Doe 1‘s life in the master bedroom, nor did he ever threaten his daughters. The only life he threatened was his own. He denied stating that he would be dead before the police came. He denied telling Doe 1 days before his visit that if she called the police, the two of them would be dead before they arrived. He also denied ever stating that he would blow his brains out if the police came.
Johnson acknowledged that he sent his family certain instructions, which he described as a “play” as to how to act, and that he wanted everyone to study the play and know their lines. He sent the instructions because he wanted to “make sure that everything was . . . presented properly.” He wanted the jury — and everybody — to know that he lived in the Antioch house. It was “kinda creepy sounding” for his family to say that he did not live in a house he had been living in forever. He also told his family to use the word “upset” and not scared because he did not want to appear to be a monster to the jury when he had no intent of harming his family. On reflection at trial, he saw that sending the instructions was a “dumb move” and regretted it, but noted he was worried about how he would come across in court.
C. Rebuttal
On rebuttal, Officer Ibanez testified that in his unrecorded conversation with Johnson in the living room that morning, Johnson did not say that Doe 1 hit him. Johnson indicated that he and Doe 1 had a purely verbal argument and denied that anything physical happened between them. Johnson denied having a gun or ever saying that he was going to shoot himself if the police came.
D. Verdict, Sentencing, and Appeal
The jury found Johnson guilty as charged on all counts. As to count 1 (first-degree residential burglary), the jury found true the allegation that Johnson was armed with a firearm during the commission of the burglary. As to count 5 (dissuading a witness by force or threat), the jury found true the allegation that Johnson personally used a firearm during the commission of the offense.
DISCUSSION
A. Count 5 - Substantial Evidence
Johnson raises as his first issue on appeal a substantial evidence challenge to his count 5 conviction for dissuading a witness under
1. Applicable Law
In reviewing a claim of insufficiency of evidence to support a criminal conviction, “‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‘” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
“Section 136.1 criminalizes trying to dissuade a [witness] from reporting a crime. The offense can be either a misdemeanor or felony; if the perpetrator tried to dissuade by using force or the threat of force, it is a felony.” (People v. Ortiz (2002) 101 Cal.App.4th 410, 415-416.)
Thus, under
2. Analysis
Johnson contends he cannot be guilty of felony dissuasion under
The People acknowledge that Johnson‘s conviction for count 5 was not based on any threat to shoot another person. Nor do the People dispute that his count 5 conviction was based on his act of pointing a gun to his head and threatening to blow his brains out. Rather, they argue Johnson‘s threat of self-harm constituted threat to a “third person” within the meaning of
Thus, Johnson‘s substantial evidence argument raises an issue of statutory construction concerning the meaning of “third person” in
“In construing a statute, our role is to ascertain the Legislature‘s intent so as to effectuate the purpose of the law. [Citation.] In determining
“‘If, however, the language supports more than one reasonable construction, we may consider “a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” [Citation.] Using these extrinsic aids, we “select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.“‘” (Lopez, supra, 31 Cal.4th at p. 1056.) “If a statute defining a crime or punishment is susceptible of two reasonable interpretations, we ordinarily adopt the interpretation that is more favorable to the defendant.” (People v. Arias (2008) 45 Cal.4th 169, 177.)
Here, we need not look beyond the statute‘s plain meaning to determine whether the Legislature intended a threat of harm to oneself to constitute a threat to a “third person” to be guilty of attempted dissuasion.
Applying these dictionary definitions in a reasonable and common-sense manner, we conclude that “third person” as used in
For count 5, the prosecution presented no argument or evidence that Johnson threatened anyone else beyond himself, relying solely on his statement that he would blow his brains out if the police were called to support the charge. Because there was no substantial evidence of harm to a third person, we conclude that substantial evidence did not support the count 5 conviction of attempting to dissuade a witness in violation of
The People‘s arguments do not compel us to go beyond our plain meaning analysis or to adopt a different construction. The People do not identify any ambiguities in the statutory text, nor do they seek to present any extrinsic materials relevant to the construction of the statutory language.3
B. Count 2 - Instructional Error
Next, Johnson turns to his count 2 conviction for dissuading a witness under sectionC. Count 2 – Classification as “Violent” Felony
Johnson‘s abstract of judgment classifies his count 2 conviction for dissuading a witness by force or threat in violation of sectionD. The Booking Fee
At sentencing, the trial court imposed a $564 “booking fee” pursuant toDISPOSITION
Johnson‘s count 5 conviction under sectionPetrou, J.
Tucher, P.J.
Rodríguez, J.
A160025/ People v. Johnson III
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Christopher Bowen
Counsel: Office of Attorney General, Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Julie L. Garland, Senior Assistant Attorney General, Michael Pulos, Supervising Deputy Attorney General, Teresa Torreblanca and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.
First District Appellate Project, Jonathan Soglin; Law Offices of Tiffany J. Gates, Tiffany J. Gates, for Defendant and Appellant.