Filed 7/19/18; Certified for Publication 8/8/18 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



THE PEOPLE,                                                        D071405

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. SCN333477)

PEDRO RODRIGUEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, K. Michael

Kirkman, Judge. Affirmed.



         Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B.

Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
       Pedro Rodriguez met Rebecca on an online dating application when he was 41 and

she was 16 years old. Rodriguez arranged an in-person meeting with Rebecca a few

weeks later and, on numerous occasions over the next several months, engaged in various

sexual acts with her in hotel rooms he had rented. A jury convicted Rodriguez of 11

offenses involving unlawful sexual conduct with a minor, one count of burglary in

violation of Penal Code section 459,1 and one count of attempting to dissuade a witness

from reporting a crime in violation of section 136.1, subdivision (b)(1).

       Rodriguez contends there was insufficient evidence to support the conviction for

burglary because section 459 requires an invasion of a possessory interest in the subject

room or building and, much like the lessee of an apartment, he had an unconditional

possessory interest in the hotel room he rented. He asserts the trial court should have

either dismissed the charge or provided the jury with a pinpoint instruction regarding the

significance of any such possessory interest. To the extent this court concludes there is a

relevant distinction between his possessory interest in the hotel room and a homeowner

or lessee's possessory interest in a home or apartment, Rodriguez argues the result would

be a violation of his constitutional right to equal protection. In addition, Rodriguez

contends there was insufficient evidence to support the conviction for attempting to

dissuade a witness pursuant to section 136.1, subdivision (b)(1) because any attempt he

made to dissuade Rebecca occurred only after she made an initial report to the police.




1      All further unspecified statutory references are to the Penal Code.
                                             2
       We conclude there was sufficient evidence to support both convictions, that the

court did not err in its refusal to dismiss the burglary charge or its instruction to the jury

concerning burglary, and that the equal protection clause is not applicable because

individuals renting hotel rooms are not similarly situated to those owning or leasing a

residence. We therefore affirm the judgment.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Rebecca went on a trip to San Francisco with a school group in January 2014

when she was 16 years old. While on the trip, she logged into a social media dating

application on her phone that allowed her to create a profile and locate other individuals

in the same geographic area. Using the application, Rebecca made contact with an

individual identifying himself as "Max Powers." "Max" initially told Rebecca he was 16,

but she eventually learned his real name was Pedro Rodriguez and that he was actually 41

years old.

       Rebecca and Rodriguez continued talking on various messaging applications and

exchanged telephone numbers within a couple of weeks. By mid-February, Rebecca had

sent Rodriguez nude photographs of herself at his request. Around that time, they also

started discussing meeting in person, but Rebecca told Rodriguez that she did not want to

have sex until marriage and that she did not believe in using birth control, due to her

religious beliefs.

       On February 22, 2014, Rodriguez drove from San Francisco to San Diego County

to see Rebecca. Rodriguez rented a hotel room and then drove to Rebecca's

neighborhood. He parked his car in a cul-de-sac behind Rebecca's house and she snuck

                                               3
out through the backyard to ensure her parents would not see them. They drove around

running errands together for a while, and then drove to the hotel Rodriguez was staying at

so he could get a different shirt from his room. Rodriguez asked Rebecca to come up to

the room but she said she did not feel comfortable and waited for him in the car. When

Rodriguez returned, he continued to pressure her to go up to the hotel room, saying that

he did not think she trusted him, and Rebecca eventually agreed. As soon as they entered

the room Rodriguez grabbed her and kissed her. He then removed her clothes and

engaged in various sex acts with her.

       Rodriguez drove back to San Diego County on March 8, 2014, and rented a room

at the same hotel. He took Rebecca out to breakfast, then back to the hotel, where he

took her clothes off, orally copulated her, and engaged in intercourse with her. Rebecca

took several photographs during the encounter, including one of Rodriguez orally

copulating her and one of the two of them lying in bed together without any clothes.

       Over the course of the next several months, Rodriguez met Rebecca and engaged

in various sex acts with her on several other occasions. At their last meeting, in May

2014, Rodriguez was upset that Rebecca had been talking and sending pictures to another

individual—a boy closer to her own age—and told her if she did not stop, he would tell

her mother everything they had been doing and would send her mother illicit pictures and

videos that Rebecca had sent to him. They continued to argue throughout the following

week. Rebecca felt Rodriguez was blackmailing her with his threats so she decided to

tell her mother what had happened with Rodriguez herself. She gave her mother a phone



                                            4
that Rodriguez had given her so they could communicate without anyone knowing and

told her what had been happening.

         Shortly thereafter, Rebecca's mother took her to the police station to make a

report. The next day, after discovering Rebecca had talked to the police, Rodriguez sent

Rebecca an e-mail asking her to sign a statement that said she was forced to give an

inaccurate statement to the police after being told she was a party to a crime, and that she

only knew Rodriguez from an online dating application. Rebecca did not sign the

statement and, instead, spoke with a detective from the police department several more

times and went with the detective to identify each of the hotel rooms she had visited with

Rodriguez. However, she also remained in contact with Rodriguez, both directly and

through an intermediary, and he continued to threaten her and pressure her to change her

story.

         The police arrested Rodriguez in June. While in jail, he had his brother send

another phone to Rebecca so he could communicate with her. He also moved to

represent himself at the preliminary hearing and rehearsed the questions he planned to

ask Rebecca over the phone with her. By the time of the preliminary hearing in August,

Rodriguez had convinced Rebecca to change her testimony to say that she never had a

sexual relationship with him. However, the court did not find her testimony credible and

allowed the case to continue.

         After the preliminary hearing, Rodriguez moved to set aside the burglary charge

pursuant to section 995. He argued he could not be guilty of burglary in violation of

section 459 because, in accordance with People v. Gauze (1975) 15 Cal.3d 709 (Gauze),

                                              5
section 459 requires an entry that invades a possessory right and he had an unconditional

possessory right to the hotel room he rented. The People opposed the motion and the trial

court denied it.

       In late 2014, the police discovered Rodriguez and Rebecca were still in contact

and, in January 2015, they seized three phones from Rebecca's home, including two that

Rodriguez had sent to her. Rebecca had no further contact with Rodriguez after that and,

several months later, she testified at trial consistent with her original report to the police;

specifically, she stated that Rodriguez did engage in sexual acts with her on several

occasions in various hotel rooms he had rented, including on March 8, 2014. Rodriguez

also testified and admitted he had a relationship with Rebecca but claimed it was never

sexual.

       At the conclusion of the case, Rodriguez asked the court to dismiss all of the

charges pursuant to section 1118.1, which the People opposed. The court granted the

motion as to count 5 (sodomy of a person under the age of 18 in violation of § 286, subd.

(b)(1)) after finding Rebecca's testimony was incomplete as to that particular charge, but

denied it as to all other charges.

       The jury found Rodriguez guilty on all remaining charged offenses, including one

count of burglary in violation of section 459, and one count of attempting to dissuade a

witness from reporting a crime in violation of section 136.1, subdivision (b)(1).

Rodriguez filed a motion for a new trial, which the trial court denied.

       Rodriguez appeals.



                                               6
                                       DISCUSSION

I. Burglary Conviction

       Rodriguez contends he could not have committed burglary by entering the hotel

room because he had an unconditional possessory interest in the room during the rental

period. He therefore asserts there was insufficient evidence to support the burglary

conviction, and that the trial court should have granted either his section 995 motion to

set aside the information prior to trial or his section 1118.1 motion to dismiss the burglary

charge after the trial. In the alternative, he argues the court should have provided a

pinpoint instruction to the jury regarding the significance of a possessory interest with

respect to the burglary charge, and that the conviction must be reversed as a result. In

addition, Rodriguez asserts any determination that he did not have an unconditional

possessory interest in the hotel room would violate his constitutional right to equal

protection by treating him differently than a homeowner or lessee. In response, the

People argue Rodriguez waived his argument with respect to at least the section 995

motion, and that the trial court did not err in any event by denying the motions or

instructing the jury as to the burglary charge.

       A. Court's Refusal to Dismiss the Burglary Charge

       Rodriguez combines his arguments that there was insufficient evidence to support

the burglary conviction and that the court erred in failing to dismiss the charge based on

either his section 995 or section 1181.1 motion in his briefing on appeal, and we consider

the arguments collectively as well.



                                              7
              1. Waiver

       We turn first to the People's assertion Rodriguez waived his argument that the trial

court erred by denying his section 995 motion to dismiss the burglary charge. The People

assert section 999a required Rodriguez to seek a writ of prohibition within 15 days of the

trial court denying his section 995 motion, and that his failure to do so precludes him

from raising the argument on appeal.

       The People rely on People v. Alcala (1984) 36 Cal.3d 604, in which the California

Supreme Court concluded arguments concerning a lack of probable cause at a

preliminary hearing are waived if not timely pursued prior to trial, but they misinterpret

the court's conclusion therein. (Id. at p. 628.) The court in Alcala made that statement in

the context of explaining that failures of evidence at the preliminary hearing are not

jurisdictional defects because they are waived for all purposes if not raised prior to trial.

(Ibid.) Here, Rodriguez did raise the issue prior to trial, pursuant to the mechanism for

doing so set forth in section 995, and therefore complied with the court's statement in

Alcala. (§ 995.) While section 999a sets forth the timeframe for filing a writ of

prohibition challenging the trial court's denial of a section 995 motion prior to trial,

neither Alcala nor any other authority requires a defendant to file such a writ to preserve

the argument on appeal. Accordingly, we conclude Rodriguez has not waived his

argument that the trial court erred by denying his section 995 motion.

              2. Merits

       Turning to the merits, a person commits burglary in violation of section 459 when

he or she enters a house, room, apartment, or other type of structure enumerated in

                                              8
section 459 with the intent to commit a felony. (§ 459.) Here, the evidence presented at

trial established Rodriguez rented a hotel room on March 8, 2014, and entered the room

with the intent to commit felonious acts—specifically, the underlying felony charges on

which he was convicted. While Rodriguez argues there is insufficient evidence to

support the verdict, he does not dispute the evidence concerning the hotel room or the

verdicts on the underlying felonies. Instead, his sole contention is that he could not have

committed burglary pursuant to section 459 because he had an unconditional possessory

interest in the room. This is primarily a legal question that we review de novo.2 (See

People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Ghirardo v.

Antonioli (1994) 8 Cal.4th 791, 799.)

       In Gauze, supra, 15 Cal.3d 709, the California Supreme Court discussed the

legislative history of section 459 and concluded "the Legislature has preserved the

concept that burglary law is designed to protect a possessory right in property, rather than

broadly to preserve any place from all crime," and that, therefore, a "burglary remains an

entry which invades a possessory right in a building." (Id. at pp. 713-714, italics added.)

As a result, an individual does not violate section 459 if he or she has an unconditional



2       We review assertions the evidence was insufficient for substantial evidence.
(People v. Casares (2016) 62 Cal.4th 808, 823 (Casares).) However, as stated here,
Rodriguez does not seriously contend the evidence was insufficient, except insofar as it
did not establish he invaded a possessory right in a building when he entered his own
hotel room. Thus, to the extent we conclude, as we do, that one does not have an
unconditional possessory interest in a rented hotel room and can commit burglary in
violation of section 459 by entering one's own hotel room with the intent to commit a
felony, we likewise conclude substantial evidence supports the burglary conviction, and
that the court did not err by denying Rodriguez's sections 995 and 1118.1 motions.
                                             9
possessory right to enter as the occupant of the structure. (People v. Salemme (1992) 2

Cal.App.4th 775, 781 (Salemme).) Since this pronouncement in Gauze, appellate courts

in California have concluded an individual can commit a burglary by entering a hotel

room with the intent to commit a felony when the hotel room was rented by the victim,

but have not directly addressed whether the same is true in the case of a hotel room

rented by the alleged burglar. (See People v. Villalobos (2006) 145 Cal.App.4th 310,

316-317 (Villalobos), but see People v. Minervini (1971) 20 Cal.App.3d 832, 840-841

(Minervini) [predating Gauze but concluding the fact that defendants acquired and paid

for hotel rooms did not mitigate against a finding that they violated § 459 by entering the

rooms with the intent to commit theft].)

       The question the court addressed in Gauze was whether an individual could

commit burglary in his or her own home. (Gauze, supra, 15 Cal.3d at p. 711.) There,

Gauze shared an apartment with two other roommates and, after arguing with one of the

roommates at another location earlier in the day, entered the shared apartment with a

shotgun and shot his roommate. (Ibid.) The court concluded Gauze did not violate

section 459 by entering the apartment because he had an absolute right to enter his own

apartment, even if for a felonious purpose. (Gauze, at p. 714.) In so holding, the court

explicitly distinguished another case, People v. Barry (1892) 94 Cal. 481, and its

progeny, in which the court had previously concluded a person could be convicted of

burglary of a store even though he or she entered during regular business hours and

therefore had an implied invitation to be in the store as a member of the public. (Gauze,

at p. 713; see People v. Deptula (1962) 58 Cal.2d 225, 226-228 [applying Barry and

                                            10
concluding a manager violated § 459 when he entered the business with the intent to

commit a felony despite having his own set of keys to the business].) While the

defendant's invitation to enter the store in Barry was presumably limited to entry for legal

purposes, the court concluded Gauze had an unconditional possessory right to enter his

own apartment for any reason and regardless of his intent. (Gauze, at pp. 714-715.)

       However, in a subsequent case, the court differentiated between the unconditional

possessory interest at issue in Gauze and consent, explaining, "one may be convicted of

burglary even if he enters [a room or building] with consent, provided he does not have

an unconditional possessory right to enter." (People v. Pendleton (1979) 25 Cal.3d 371,

382 (Pendleton), italics added.) Thereafter, in Salemme, the court further clarified the

distinction between possessory interest and consent and summarized the state of the law

as follows: "a person who enters a structure enumerated in section 459 with the intent to

commit a felony is guilty of burglary except when he or she (1) has an unconditional

possessory right to enter as the occupant of that structure or (2) is invited in by the

occupant who knows of and endorses the felonious intent." (Salemme, supra, 2

Cal.App.4th at p. 781 [concluding defendant violated § 459 despite homeowner's consent

to entry because homeowner had no knowledge of defendant's felonious intent].)

Consistent with these cases, various appellate courts, in other more recent cases, have

upheld burglary convictions where the defendant entered a building or room with the

intent to commit a felony and without an unconditional possessory interest. (See, e.g.,

Salemme, at p. 781; People v. Ulloa (2009) 180 Cal.App.4th 601, 606-607 [defendant

guilty of burglary when he entered apartment he had coleased with his spouse because

                                              11
there was substantial evidence he had moved out and no longer had an unconditional

possessory interest]; People v. Clayton (1998) 65 Cal.App.4th 418, 421-424 [defendant

convicted of burglary when he entered a home with the intent to kill the victim even

though husband who also lived in the home gave defendant a key].)

       Here, Rodriguez claims he had an unconditional possessory interest in the hotel

room he rented akin to that of a homeowner or lessee of a residence, but the law does not

support his assertion. Instead, California law has long recognized a distinction between

the possessory rights a tenant has in a home or apartment versus those a temporary lodger

has in a rented room in a hotel, motel, or similar establishment; while a tenant has

exclusive legal possession of the premises, a lodger only has a right to use the premises,

subject to the renter's control and right of access. (See Stowe v. Fritzie Hotels, Inc.

(1955) 44 Cal.2d 416, 421 (Stowe); Bullock v. City and County of San Francisco (1990)

221 Cal.App.3d 1072, 1097 (Bullock) [possessory interest of lodger "vastly inferior" to

tenant]; Roberts v. Casey (1939) 36 Cal.App.2d Supp. 767, 771 (Roberts) [guests in a

hotel have a contractual right but no interest in the realty].) Thus, at most an individual

who rents a hotel room may have some temporary possessory interest in that room, but

that interest is not equivalent to the possessory interest of a homeowner or lessee and is

not unconditional. Accordingly, Rodriguez did not have an unconditional possessory

interest in the hotel room he rented and the possessory interest exception set forth in

Gauze is inapplicable.

       Rodriguez argues he had an unconditional right to possession during the rental

period because he alone had the legal right to come and go from the hotel room. We

                                             12
disagree. Presumably the hotel maintained access to the room as well—for such purposes

as housekeeping and maintenance—and the hotel had the right to eject him from the

room should he engage in illegal activity therein. (See Minervini, supra, 20 Cal.App.4th

at p. 840 [guest may be excluded from hotel premises and his or her privilege of

occupancy forfeited because of unlawful conduct].) Rodriguez asserts a hotel's ability to

eject a guest is no different than a lessor's ability to evict a tenant, but evicting a tenant

involves a complex legal process aimed in part at protecting the tenant's occupancy rights

while ejecting a hotel guest does not. (See, e.g., Code Civ. Proc., § 1161; Roberts, supra,

36 Cal.App.3d Supp. at p. 771 [hotel guest's rights are contractual].) While Rodriguez

may have had the hotel's consent to enter and use the room during the rental period,

consent is not equivalent to a possessory interest and, in any event, the consent was not

given with knowledge of Rodriguez's felonious intent. (Pendleton, supra, 25 Cal.3d at p.

382; Salemme, supra, 2 Cal.App.4th at p. 781; People v. Sherow (2011) 196 Cal.App.4th

1296, 1304.) Regardless, Rodriguez did not argue a consent defense in the trial court, nor

does he expressly raise the issue of consent on appeal.

       Rodriguez also points the court to a number of cases regarding a hotel guest's

expectation of privacy, but those cases are not instructive. The right to privacy at issue in

those cases derives from the right to be free of unlawful searches and seizures set forth in

the Fourth Amendment to the United States Constitution, and Rodriguez provides no

authority indicating that right is dependent on a possessory interest, let alone an

unconditional possessory interest. (See Rakas v. Illinois (1978) 439 U.S. 128, 146-147

[suggesting one may have a right to privacy even absent a possessory interest in the

                                               13
searched property]; People v. Koury (1989) 214 Cal.App.3d 676, 686 [possessory interest

not required to assert a reasonable expectation of privacy under the Fourth Amendment];

People v. Zabelle (1996) 50 Cal.App.4th 1282, 1286 [hotel room is considered a dwelling

for the purpose of the Fourth Amendment]; see also Stoner v. California (1964) 376 U.S.

483, 489; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1206.)

Instead, the right to privacy in a hotel room arises primarily from its status as a sleeping

place, where one is vulnerable and cannot monitor the safety and security of one's own

belongings. (Villalobos, supra, 145 Cal.App.4th at p. 319.) There was no search or

seizure at issue in the present case and the mere fact that Rodriguez had some expectation

of privacy in the hotel room he rented does not indicate he also had an unconditional

possessory interest in the room.

       Based on the foregoing, we conclude Rodriguez did not have an unconditional

possessory right to his hotel room and, thus, substantial evidence supports the burglary

conviction. Accordingly, we conclude the trial court did not err in refusing to grant

Rodriguez's motions to dismiss the charge pursuant to sections 995 or 1181.1.

       B. Jury Instruction

       Alternatively, Rodriguez contends the trial court should have given a pinpoint

instruction to the jury regarding the significance of an unconditional possessory interest

to the elements of section 459.

       The People contend Rodriguez forfeited this argument as well and he concedes he

did not request a pinpoint instruction, but argues the trial court had a sua sponte duty to

provide the instruction because it concerned a general principle of law relevant to the

                                             14
issues raised by the evidence. (See People v. Martinez (2010) 47 Cal.4th 911, 953;

People v. Earp (1999) 20 Cal.4th 826, 885.) However, the cases Rodriguez primarily

relies on relate to the trial court's sua sponte duty to instruct on defenses where there is

sufficient evidence to support the defense and, similarly, lesser included offenses when

the evidence raises a question of whether the elements of the charged offense are met.

(Martinez, at p. 953; Earp, at p. 885; People v. Breverman (1998) 19 Cal.4th 142, 157.)

Pinpoint instructions, on the other hand, relate to the elements of a charged offense and,

specifically, whether the prosecution has met its burden of proof as to each such element.

(People v. Anderson (2011) 51 Cal.4th 989, 996-997 (Anderson).) Pinpoint instructions

must be given only upon request, and the trial court has no sua sponte obligation to give

them absent such a request. (Ibid.; People v. Hernandez (2010) 183 Cal.App.4th 1327,

1331 ["Once the trial court adequately instructs the jury on the law, it has no duty to give

clarifying or amplifying instructions absent a request."].)

       Here, the court instructed the jury as to the elements of burglary using the standard

instruction.3 Much of the discussion regarding jury instructions was held off the record,

but Rodriguez does not contend that he objected to the form of the burglary instruction

and concedes he did not ask for a pinpoint instruction regarding possessory interest.

Moreover, in his closing statement, defense counsel did not argue the prosecution had


3      The court instructed the jury, in part: "[t]he defendant is charged in Count 3 with
burglary in violation of . . . section 459. To prove the defendant is guilty of this crime,
the People must prove that: The defendant entered a building/room; and, when he
entered a building—within the building or room, he entered and intended to commit
unlawful sexual intercourse with a minor more than three years younger or oral
copulation with a person under 18."
                                              15
failed to prove the burglary charge based on his alleged possessory interest in the hotel

room, and instead asserted no sexual conduct occurred between Rodriguez and Rebecca

in the first instance. Thus, the court had no obligation to give a pinpoint instruction on

possessory interest.

       Regardless, as we have concluded ante, in section I.A., Rodriguez did not have an

unconditional possessory right to the hotel room and the prosecution presented

substantial evidence to support each element of the burglary charge. Therefore, we

conclude the trial court did not err by failing to provide a pinpoint jury instruction on

possessory interest and, even if the court had erred, any such error was harmless.

(Anderson, supra, 51 Cal.4th at pp. 996-997; see People v. Merritt (2017) 2 Cal.5th 819,

831 [failure to instruct on an element of a charged offense subject to harmless error

analysis].)

       C. Equal Protection

       Finally, Rodriguez asserts any distinction this court has drawn between the

possessory interest he had in the hotel room he rented and the possessory interest a

homeowner or lessee has in a home or apartment violates his constitutional right to equal

protection. We disagree.

       To prevail on an equal protection claim, the defendant must show that the state has

adopted a classification that affects two or more similarly situated groups unequally.

(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Here, as discussed, California

law has long recognized a distinction between the rights of a long-term tenant and a

temporary lodger. (See Stowe, supra, 44 Cal.2d at p. 421; Bullock, supra, 221

                                             16
Cal.App.3d at p. 1097; Roberts, supra, 36 Cal.App.3d Supp. at p. 771.) Accordingly, an

individual renting a hotel room—particularly when, as is the case here, the room is rented

for a short period and is not used as a residence—is not similarly situated to a homeowner

or lessee of a home or apartment, and the equal protection clause does not apply.

       Regardless, even if individuals renting hotel rooms and homeowners or lessees

were similarly situated, individuals renting hotel rooms are not members of a protected

class. Therefore, Rodriguez would need to show the allegedly disparate treatment of

hotel room renters bears no rational relationship to a legitimate stated purpose. (See

People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) To the contrary, precluding

individuals from entering a rented hotel room with the intent to commit a felony serves

the public interest of protecting citizens by discouraging criminals from utilizing hotel

rooms in areas where they are unknown and less likely to be recognized to carry out

criminal conduct, as Rodriguez did in the present case. Accordingly, Rodriguez cannot

establish a claim for equal protection.

II. Dissuading a Witness

       Rodriguez also contends there was insufficient evidence to support his conviction

on the charge of attempting to dissuade a witness from reporting a crime in violation of

section 136.1, subdivision (b)(1). He argues that the only evidence the prosecutor

presented related to actions he took after Rebecca made her initial report to the police,

that the statute requires an attempt to prevent the initial reporting of a crime, and that we

must therefore reverse the conviction. We review assertions the evidence was

insufficient to support the conviction for substantial evidence, and review any related

                                             17
issues of statutory interpretation de novo. (Casares, supra, 62 Cal.4th at p. 823;

Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247.)

       Section 136.1, subdivision (b)(1) makes it a crime to dissuade the victim of a

crime, or a witness, from "[m]aking 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." (§ 136.1, subd. (b)(1).) Thus, a plain reading of the

statute includes any report of a crime to a law enforcement officer, including both the

initial report and additional information about the offense provided thereafter. (See

People v. Fernandez (2003) 106 Cal.App.4th 943, 948 (Fernandez).) Accordingly, an

attempt to dissuade a witness from making a future or additional report to the police is

sufficient to sustain a conviction pursuant to section 136.1, subdivision (b)(1). (People v.

Pettie (2017) 16 Cal.App.5th 23, 54-55.)

       Here, the prosecution presented evidence Rodriguez attempted to dissuade

Rebecca immediately after he found out she made an initial report to the police.

Specifically, the day after Rebecca went to the police, Rodriguez asked her to sign a

statement indicating she was pressured to make an inaccurate report to the police and that

she only knew him through a dating application. Rebecca did not sign the statement and,

instead, continued talking with the police, providing additional information and

identifying the specific locations where the crimes occurred. During this time, Rodriguez

continued to pressure and threaten Rebecca, causing her to feel "overwhelmed and

stressed out and scared." Although the evidence showed Rodriguez continued to pressure

Rebecca up until the preliminary hearing—perhaps to explain why she testified

                                             18
inconsistently at that hearing—the prosecution relied primarily on the e-mail and early

threats as a basis for the charge of attempting to dissuade a witness. The evidence related

to those early attempts to dissuade Rebecca from continuing to provide information

regarding the crimes to the police is sufficient to support the conviction pursuant to

section 136.1, subdivision (b)(1).

       Rodriguez contends this case is akin to Fernandez, in which the court concluded

the defendant did not violate section 136.1, subdivision (b)(1) by attempting to dissuade a

witness from testifying, but it is not. (See Fernandez, supra, 106 Cal.App.4th at p. 945.)

The court in Fernandez concluded the defendant did not violate section 136.1,

subdivision (b)(1) because testimony was not the same as "reporting" and the "detailed

and comprehensive statutory scheme for penalizing the falsification of evidence and

efforts to bribe, influence, intimidate or threaten witnesses" required the court to construe

the individual subdivisions of the statute narrowly. (Id. at p. 948.) Here, as discussed,

the People did not rely on Rodriguez's attempts to dissuade Rebecca from testifying, but

instead asserted he violated section 136.1, subdivision (b)(1) by attempting to dissuade

Rebecca from making further reports to the police in the very early days of the

investigation. No other subdivision of section 136.1, or any related statute, covers

attempts to dissuade a victim from providing additional information to the police after the

initial reporting but before the defendant's arrest, and certainly the legislature did not

intend to permit intimidation of a victim or witness solely during that time. Thus, we

decline to extend the reasoning of the court in Fernandez to interpret section 136.1,

subdivision (b)(1) as narrowly as Rodriguez suggests.

                                              19
       Rodriguez also asserts his actions are distinguishable from those of the defendant

in People v. Navarro (2013) 212 Cal.App.4th 1336, wherein the defendant took a phone

from the victim to prevent her from calling the police. (Id. at p. 1349.) Although the

facts of the present case do differ from Navarro, there is more than one way for a given

defendant to violate a given statute and, here, as discussed, there was substantial evidence

indicating Rodriguez attempted to dissuade Rebecca from making further reports to the

police. In any event, the court in Navarro also found the defendant there violated section

136.1, subdivision (b)(1) when he later threatened the victim and told her to tell the

police everything was fine after she called 911 on another telephone line. (Navarro, at

pp. 1343, 1349.) Thus, if anything, Navarro supports the conclusion that it is a violation

of section 136.1, subdivision (b)(1) to dissuade a witness from continuing to report a

crime, even after the initial report has been made.

       We therefore conclude substantial evidence supports the conviction of attempting

to dissuade a witness in violation of section 136.1, subdivision (b)(1).




                                             20
                                 DISPOSTION

     The judgment is affirmed.


                                              BENKE, J.

WE CONCUR:



McCONNELL, P. J.



HUFFMAN, J.




                                     21
Filed 8/8/18

                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA

THE PEOPLE,                                         D071405

        Plaintiff and Respondent,

        v.                                          (Super. Ct. No. SCN333477)

PEDRO RODRIGUEZ,                                   ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
        Defendant and Appellant.


THE COURT:

        The opinion in this case filed July 19, 2018, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is

GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

        ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.




                                                                      McCONNELL, P. J.

Copies to: All parties




                                            2
