People v. McElroy

• Decision Date: 10 February 2005
• Docket Number: No. C044996.,C044996.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clark Leslie McELROY, Defendant and Appellant.

24 Cal.Rptr.3d 439

126 Cal.App.4th 874

The PEOPLE, Plaintiff and Respondent, v. Clark Leslie McELROY, Defendant and Appellant.

No. C044996.

Court of Appeal, Third District.

February 10, 2005.

Review Denied May 18, 2005.^*

Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Assistant Attorneys General, Stan Cross and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.

SIMS, Acting P.J.

In this case, we consider a variety of issues arising out of defendant's convictions for dissuading a victim, in violation of Penal Code section 136.1,¹ and for obstructing a telephone line, in violation of section 591.

Defendant Clark Leslie McElroy was convicted after a jury trial of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), dissuading a victim from reporting a crime (§ 136.1, subd. (b)(1)), obstructing a telephone line (§ 591) and battery on a cohabitant (§ 243, subd. (e)(1)). The trial court sentenced defendant to the upper term of three years for possessing a firearm a consecutive sentence of one-third the midterm, or eight months, for dissuading a victim, for an aggregate term of three years and eight months in state prison. With respect to the misdemeanors the trial court imposed one year for the battery, with credit for time served, and stayed a one-year sentence for obstructing a telephone line pursuant to section 654.

On appeal, defendant contends the jury was not instructed as to all the elements of dissuading a victim, there was insufficient evidence to support his convictions for dissuading a victim and for obstructing a telephone line, and the court unlawfully imposed a $200 parole revocation fine. We affirm.

BACKGROUND

Daneea Espegren lived with defendant and his daughter. On March 27, 2003, Espegren and defendant woke up around noon and resumed an argument they had had until about 3:00 a.m. the night before. The couple was fighting about money and drugs. Several times during the argument, Espegren asked defendant to leave or to let her leave. Defendant refused to leave or to give her the keys to a car.

Around 2:30 p.m., defendant struck Espegren in the nose with the open palm of his hand, causing pain and swelling. After striking her, he immediately knelt down, apologized and began to cry. The couple then went into the living room to calm down, sitting in opposite ends of the room.

Espegren went into the bedroom to change clothes so she could leave. Defendant, however, grabbed her arm to prevent her from changing clothes and blocked the door so she could not leave. When defendant blocked the door, he put his arm around her body and they both fell to the floor. Defendant also grabbed Espegren's neck, leaving a mark, in an attempt to "keep [her] down" and prevent her from going out the door.

After Espegren was able to get away, the couple went back into the living room. After a "silent period," the argument about money resumed. At one point during this lengthy dispute, Espegren had attempted to call the police by dialing 911. She told defendant that she did not want to argue anymore, she did not want to be there and she did not want defendant there, so if he was going to stay, then she was calling the police. Defendant responded by taking the telephone away from her and hanging it up.

Around 4:00 p.m. or 4:30 p.m., defendant's daughter arrived home from school. Defendant and Espegren were still yelling and arguing. Espegren then tried to telephone her brother to ask him to come get her so she could leave the house. Defendant took the telephone from her and held it above his head while unplugging the telephone with his other hand so she could not use it. When Espegren tried to get the telephone, defendant taunted her by holding it over his head and telling her she could not call anyone and she had to stay. Defendant then placed the telephone on a chair outside the door where she could not get to it. By unplugging this base telephone, the corresponding cordless telephone became nonoperational.

Espegren then saw defendant's cellular telephone sitting on a table. Espegren grabbed the cellular telephone, called 911 and "calmly asked for a civil standby." While she made the call, defendant stood over her yelling at her that she did not need to be doing that. Espegren went to the neighbor's house to wait for the police, who arrived approximately 10 minutes later.

When the police arrived, Espegren told Officer Purdy that defendant had slapped her face, grabbed her arm, and caused them to fall to the floor when he grabbed her in his attempt to prevent her from leaving the bedroom. Officer Purdy noticed the right side of Espegren's face was red and her eye was swollen. The officer also noted a mark on Espegren's neck.

Defendant told the officer that the couple had been in a verbal argument but that there had been no physical contact. Officer Purdy asked defendant why the telephone was unplugged. Defendant responded that it belonged to him so he disconnected it. He also said that, before he disconnected it, he knew Espegren was going to call the police.

Defendant was arrested. Espegren was on searchable probation, gave consent for the officers to search the house, and assisted police in locating a hidden firearm.

Defendant and Espegren had many similar incidents during their relationship, some of which involved mutual violence. On June 21, 2002, the couple engaged in an argument over car keys that escalated into grabbing, pushing, and mutual physical strikes. On July 7, 2002, they had a fight during which defendant picked Espegren up by her neck and dragged her down the hallway. Espegren was arrested on domestic violence charges.

Ruby McElroy, defendant's estranged wife, testified that when she attempted to physically separate from defendant, he twice grabbed her around the throat and threw her into a closet. When she tried to make a telephone call, defendant pushed her against the wall and tore the telephone out of the wall. As Ruby ran towards the back door, defendant grabbed her by the hair and threw her to the ground. He then placed her in a headlock, bent her arm back and forced her face into the mattress in a manner making it difficult to breathe. When he let her up, she curled up in a corner in the fetal position with her hands covering her face. Defendant yelled at her, grabbed and squeezed her hand very hard and attempted to gouge her eyes with his thumbs. Ruby finally escaped when defendant fell asleep.

DISCUSSION

I Dissuading a Victim as Felony

Defendant contends that, although he was charged and convicted of violation of felonious dissuading of a witness or victim under section 136.1, subdivision (b)(1), the jury was not instructed on the element of "force or fear" as required to sustain a felony conviction. He argues that section 136.1, subdivision (b), which does not require the defendant's use of force or fear, is a misdemeanor provision only and that, in order for a violation of section 136.1 to be a felony, the conviction must be under subdivision (c). He is wrong.

Section 136.1 provides in relevant part: "(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] ... [¶] (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. [¶] ... [¶] (b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. [¶] ... [¶] (c) Every person doing any of the acts described in subdivision (a) or (b) 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." (Italics added.)

By its terms, section 136.1, subdivision (b)(1), provides for alternative felony-misdemeanor punishment, as it is punishable "by imprisonment in a county jail for not more than one year or in the state prison." This is classic "wobbler" language.² A wobbler offense charged as a felony is regarded as a felony for all purposes until imposition of sentence or judgment. (People v. Banks (1959) 53 Cal.2d 370, 381, 1 Cal.Rptr. 669, 348 P.2d 102; People v. Superior Court (Perez), supra, 38 Cal.App.4th at p. 356, fn. 12, 45 Cal.Rptr.2d 107.) If state prison is imposed, the offense remains a felony; if a misdemeanor sentence is imposed, the offense is thereafter deemed a misdemeanor. (People v. Banks, supra, 53 Cal.2d at pp. 381-382, 1 Cal.Rptr. 669, 348 P.2d 102; People v. Superior Court (Perez), supra, at p. 356, fn. 12, 45 Cal.Rptr.2d 107.) Effective 1998, subdivisions (a) and (b) were revised from straight misdemeanor status to provide for alternative felony-misdemeanor punishment. (Stats.1997, ch. 500, § 1 [in subdivisions (a) and (b), substituted "public offense and shall be punished by imprisonment in a county...