People v. Lyons

• Decision Date: 13 November 1991
• Docket Number: No. C008647,C008647
• Citation: 235 Cal.App.3d 1456,1 Cal.Rptr.2d 763
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tolliver LYONS, Defendant and Appellant.

Page 763

1 Cal.Rptr.2d 763

235 Cal.App.3d 1456

The PEOPLE, Plaintiff and Respondent, v. Tolliver LYONS, Defendant and Appellant.

No. C008647.

Court of Appeal, Third District, California.

Nov. 13, 1991.

Certified For Partial Publication.

Review Denied Feb. 11, 1992.

[235 Cal.App.3d 1457] Cynthia Macioch Campbell, under appointment by Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., Shirley A. Nelson, Derald E. Granberg, Deputy Attys. Gen., for plaintiff and respondent.

BLEASE, Associate Justice.

The defendant was convicted of robbery, a serious felony (Pen.Code, §§ 211, 1192.7, subd. (c)(19) ¹ ), and of attempting to dissuade the victim from testifying against him by threat of force or violence (§ 136.1, subds. (a), (b) and (c)(1)). He was also found to have prior convictions for assault with intent to commit robbery (§ 220), attempted rape (§ 664/261, subd. (2), (3)) and attempted burglary (§§ 664/459). He was Defendant appeals from the judgment. In the published part of this opinion ² we respond to defendant's contention that the trial court erroneously instructed the jury that section 136.1 is a general intent crime, i.e., that "[w]hen a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent...." We agree with defendant but conclude that the error was harmless. A specific intent is an intent to accomplish some additional consequence by commission of the proscribed act. The sense of the general intent instruction is dependent upon its application to the substantive elements of the offense, i.e., to what is proscribed. In this case the jury could not sensibly have applied the general intent instruction to the elements of section 136.1 without concluding that to convict defendant it was required to find that he acted with the intent that the witness not testify.

sentenced to an aggregate term of 17 years.

We will affirm the convictions but remand the case to the trial court to correct a sentencing error discussed in the nonpublished portion of the opinion.

FACTS

At about 6 a.m. on November 22, 1989, Donald Crowell left home and walked to the Greyhound bus station to talk to a friend about buying an item. As he passed the Royal Hotel, defendant grabbed him. He told Crowell that he had found himself to be a homosexual and asked Crowell if the chain he was wearing was real gold. Crowell responded that it was gold plated. Defendant told him he could drape him in real gold, took the chain, Crowell's watch and his glasses, struck him under the left eye and ran off.

Crowell described his attacker as a dark-skinned Black man with braided hair and a thin mustache, about 20 years old, 5'8"' tall and 160 pounds. He claimed the items taken were worth $247. At trial, he claimed the items were worth over $500.

At about 7 p.m. the same day, Crowell spotted defendant near a bus station, summoned the police and defendant was arrested. Sacramento Police Officer Nicholas Yaranon described defendant as a medium-skinned Black man with a mustache and beard, 5'11"', 35 years old, and 160 pounds. Defendant had none of the stolen items on his person when arrested.

Subsequently Crowell received a letter from defendant, which is set forth in the margin. ³ At trial, the parties stipulated that defendant authored the letter and that he obtained Crowell's address from a copy of the police report given him by his attorney.

DISCUSSION

I

The jury was instructed that to convict defendant of a violation of section 136.1 it must be proved inter alia that "[a]n attempt was made to prevent or dissuade [a Defendant claims that the trial court thereby misled the jury into believing that section 136.1 is a general intent crime. He argues that a reversal is required, relying upon People v. Ford (1983) 145 Cal.App.3d 985, 193 Cal.Rptr. 684. "Unless the actions or statements are meant to achieve the consequence of affecting a potential witness' testimony, no crime has been committed." (Id. at p. 989, 193 Cal.Rptr. 684.) The distinction between a general and specific intent is of consequence only if the jury could have read the instructions to permit conviction of the defendant for having intended the act of sending the letter to Crowell, viewed as tending to dissuade him from testifying, without intending that result.

                witness or victim] from testifying" in his trial. 4  It was also told [235 Cal.App.3d 1460] that the intent required for this offense is a general intent.  "In the crimes charged in Count Two of the information, namely, preventing or dissuading a witness or attempting to so prevent or dissuade from testifying accompanied by force or implied threat of force or violence upon the witness or victim, there must exist a union or joint operation of act or conduct and general criminal intent.  To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law.  When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful."  (CALJIC No. 3.30 (1989 rev. updated).)
                

"An intent is forward looking; it is the end in view, the object to be accomplished by the action taken, which is its criterion." (People v. Brady (1987) 190 Cal.App.3d 124, 136, 235 Cal.Rptr. 248, fn. 4.) If the end in view is simply a proscribed act we ordinarily call that a general intent. "When the definition ... consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence ... the intention is deemed to be a general criminal intent." (People v. Hood (1969) 1 Cal.3d 444, 456-457, 82 Cal.Rptr. 618, 462 P.2d 370.) When the end in view looks to a consequence to be derived from the act, we call that a specific intent. "When the definition [of an offense] refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent." (Id. at p. 457, 82 Cal.Rptr. 618, 462 P.2d 370.)

By these measures section 136.1, subdivision (a) defines a specific intent crime. "[E]very person who knowingly and maliciously prevents or dissuades or attempts to so prevent or dissuade any witness or victim from attending or giving testimony at any trial" is guilty of the offense. This offense can be committed in (at least) two ways; by a malicious and knowing dissuasion from testifying and by an attempt to so dissuade. The defendant was specifically charged in the latter manner.

With respect to a knowing act of dissuasion, the term "dissuades" is used as a transitive verb, meaning to act (verbally or otherwise) to prevent a witness from testifying. In an appropriate context it is permissible to use "dissuade" in the intransitive sense such that a person could engage in an act of communication which in fact dissuaded a witness from testifying without intending that result. In section 136.1 that possibility is attenuated by the The defendant seeks support from People v. Ford, supra, 145 Cal.App.3d 985, 193 Cal.Rptr. 684, which, relying upon People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311, concluded that the failure to give an instruction on specific intent in a section 136.1 case required reversal of the conviction. The opinion, while setting out facts which are equivocal as to the defendant's intention ⁶, does not set forth the instructions given the jury nor examine whether an instruction in the language of section 136.1 may convey the requisite intent. For these reasons the Ford opinion does not aid the analysis of this case. Wickersham, which concerns a failure to instruct the jury on a lesser included offense, says no more of relevance than that a reversal of a criminal conviction is compelled if a defect in the instructions "deprives a defendant of the 'constitutional right to have the jury determine [a] material issue presented by the evidence.' " (32 Cal.3d at p. 335, 185 Cal.Rptr. 436, 650 P.2d 311, citation omitted.)

                modifier "knowingly", which makes clear that the relation of act to consequence must be known to the actor. 5  Such a knowing act is ordinarily a criterion of intention.  (See People v. Rogers (1985) 172 Cal.App.3d 502, 512, 217 Cal.Rptr. 809;  In re Stonewall F (1989) 208 Cal.App.3d 1054, 1062, 256 Cal.Rptr. 578, fn. 7 ["It is the knowledge of [the] near certain causal consequence" which marks this form of intention.].)  More to the point, a specific intention is also defined by the proscription of an "attempt[ ] to ... prevent or dissuade any witness ... from ... giving testimony", the specific offense with which the defendant was charged and convicted.  An attempt connotes the intent to accomplish its object, both in law (§ 21a) and in ordinary language.  Moreover, in this case there is no plausible explanation for defendant's act of sending the letter to Crowell (fn. 3, ante ) without ascribing to him an intention to dissuade Crowell from testifying at defendant's "preliminary hearing", to which the letter is addressed
                

The jury was instructed in the language of section 136.1 and told that proof of the offense required a showing that an "attempt was made to prevent or dissuade" Crowell from testifying. For the reasons advanced above, these instructions unambiguously told the jury that for conviction defendant must have had the intent to prevent Crowell from testifying.

The erroneous instruction on general intent could not have deflected the jury from that reading. Of significance here, the general intent instruction says that when a person "intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful." In People v. Zerillo (1950) 36 Cal.2d 222, 223 P.2d 223, a...