Filed 5/22/14 P. v. Lopez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066954
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1076152)
                   v.
                                                                         ORDER MODIFYING OPINION AND
FELIX LOPEZ,                                                                 DENYING REHEARING
                                                                            [CHANGE IN JUDGMENT]
         Defendant and Appellant.


BY THE COURT:
          It is ordered that the opinion filed herein on April 24, 2014, be modified in the
following particulars:
         1. On page 3, in the fourth full paragraph commencing “The issue is,” the second
sentence commencing “This issue was resolved” is deleted and the following sentence is
inserted:

         The People rely on the case of People v. Briceno (2004) 34 Cal.4th 451
         (Briceno) to argue the 10-year enhancement was imposed properly.
         2. On page 5, the paragraph commencing “While the question” is deleted and the
following paragraphs are inserted:

                 The issue presented in Briceno differs from the issue presented here.
         Lopez concedes his conviction for violating section 136.1, subdivision (a)(2)
         is a serious felony. Section 1192.7 includes within its definition of a serious
       felony “intimidation of victims or witnesses, in violation of Section 136.1.”
       (§ 1192.7, subd. (c)(37).)

               Violent felonies, however, are defined in section 667.5. As pertinent
       here, the section includes within its definition of violent felonies “Threats to
       victims or witnesses, as defined in Section 136.1, which would constitute a
       felony violation of Section 186.22 of the Penal Code.” (§ 667.5, subd.
       (c)(20).) Therefore, a violation of section 136.1 is a violent felony only if it
       involves “threats to victims or witnesses.”

              As we explained in our earlier opinion, People v. Lopez (2012) 208
       Cal.App.4th 1049, a conviction for violation of section 136.1 may occur
       without a threat being made because the Legislature has created two distinct
       crimes. A defendant violates section 136.1, subdivision (a)(2) when he or
       she knowingly and maliciously attempts to prevent or dissuade a witness
       from testifying. If the attempt to dissuade a witness from testifying is
       “accompanied by force or by an express or implied threat of force or
       violence,” a defendant has violated section 136.1, subdivision (c)(1).

              This distinction is important because a violation of section 136.1,
       subdivision (a)(2) is a wobbler, subjecting the defendant to a term of one
       year in jail or a sentencing triad of 18 months, or two or three years. A
       violation of section 136.1, subdivision (c)(1) is a felony, subjecting the
       defendant to a prison term of either two, three, or four years.

              In this case, the information did not charge Lopez with making a
       threat. Lopez was charged with violating section 136.1, subdivision (a)(2),
       not subdivision (c)(1). Accordingly, the jury did not find Lopez had used a
       threat when he attempted to dissuade the witness from testifying. Thus, the
       crime is a serious felony, but not a violent felony, and the proper
       enhancement to be imposed for committing the crime for the benefit of a
       criminal street gang is five years. (§ 186.22, subd. (b)(1)(B).)
       3. On page 5, under the heading DISPOSITION, the single paragraph is deleted
and the following paragraph is inserted:

              The 10-year enhancement imposed on the intimidation of a witness
       count is vacated, and the matter is remanded to the trial court for
       resentencing on this count. The judgment is otherwise affirmed.




                                             2.
     This modification changes the judgment.
     Appellant Felix Lopez’s petition for rehearing is denied.

                                                             _____________________
                                                                CORNELL, Acting P.J.

WE CONCUR:


 _____________________
GOMES, J.


 _____________________
DETJEN, J.




                                          3.
Filed 4/24/14 (unmodified version)




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066954
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1076152)
                   v.

FELIX LOPEZ,                                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
         Victor J. Morse, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey
Grant, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Gomes, J. and Detjen, J.
                               PROCEDURAL SUMMARY
       A jury convicted Felix Lopez of the murder of Michael Valles (Pen. Code,
§ 187),1 discharge of a firearm at an occupied building (§ 246), possession of a firearm
by a felon (former § 12021.1), active participation in a criminal street gang (§ 186.22,
subd. (a)), and attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)).
Although numerous enhancements were found true by the jury, the only allegations
relevant to this appeal that were found true were: (1) the attempt to dissuade a witness
from testifying was committed for the benefit of a criminal street gang, and (2) Lopez had
suffered a prior conviction that constituted a strike within the meaning of section 667,
subdivisions (b)-(i).
       In the first appeal from the judgment (People v. Lopez (2012) 208 Cal.App.4th
1049), we affirmed the convictions, but remanded the matter for resentencing on the
convictions for active participation in a criminal street gang and attempting to dissuade a
witness from testifying. The issues in this appeal are limited to the sentence imposed on
the count for attempting to dissuade a witness from testifying. The trial court imposed a
sentence of two years, doubled to four years pursuant to section 667, subdivision (e)(1),
and added a term of 10 years for the gang enhancement. Lopez asserts the trial court
chose the incorrect base term and the incorrect term for the gang enhancement.
                                        DISCUSSION
Base Term
       The penalty for a violation of section 136.1, subdivision (a)(2) is “imprisonment in
a county jail for not more than one year or in the state prison.” (Id., subd. (a).) The
offense, therefore, is a “wobbler” because it is punishable as either a misdemeanor or a
felony. (People v. Corpuz (2006) 38 Cal.4th 994, 997.) The offense is a felony since
Lopez was sentenced to state prison. (People v. Upsher (2007) 155 Cal.App.4th 1311,
       1All   further statutory references are to the Penal Code unless otherwise stated.



                                               2.
1320.) Since section 136.1 does not give a specific term of imprisonment for a felony
offense of the statute, Lopez was subject to a term of imprisonment of 16 months, two
years, or three years. (§ 18.) The trial court chose the midterm of this range. No error
occurred.
Enhancement
       The enhancement was imposed pursuant to section 186.22, subdivision (b)(1).
This section provides that if a person is convicted of a felony, his or her sentence shall be
enhanced (increased) if the jury determines the crime was committed for the benefit of a
criminal street gang. The length of the enhancement, the issue in this case, depends on
the felony of which the defendant stands convicted. For most felony convictions, the trial
court has discretion to choose from a triad of two, three, or four years. (Id., subd.
(b)(1)(A).) If the felony is a serious felony as defined in section 1192.7, subdivision (c),
the term of the enhancement is five years. (§ 186.22, subd. (b)(1)(B).) If the felony is a
violent felony as defined in section 667.5, subdivision (c), the term of enhancement is 10
years. (§ 186.22, subd. (b)(1)(C).)
       The trial court determined that a violation of section 136.1, subdivision (a)(2) was
a violent felony and imposed the 10-year enhancement. Lopez concedes the conviction
was a serious felony, requiring a five-year enhancement, but argues it was not a violent
felony.
       Intimidation of victims or witnesses in violation of section 136.1 is a serious
felony. (§ 1192.7, subd. (c)(37).) Threats to victims or witnesses as defined in section
136.1 is a violent felony if it would constitute a felony violation of section 186.22.
(§ 667.5, subd. (c)(20).)
       The issue is whether Lopez’s conviction would constitute a felony violation of
section 186.22. This issue was resolved by the Supreme Court in People v. Briceno
(2004) 34 Cal.4th 451 (Briceno). Briceno committed various crimes and the jury found
true the allegation the crimes were committed for the benefit of a criminal street gang.

                                             3.
The trial court found the defendant had suffered two prior serious felony convictions
within the meaning of the “Three Strikes” law. The issue was whether the prior
conviction for carrying a concealed firearm (former § 12025, subd. (b)(3)) while an
active participant in a criminal street gang (§ 186.22, subd. (b)(1)) was a serious felony as
defined in section 1192.7, subdivision (c).2 Briceno argued this conviction was not a
serious felony because it was not listed as such in section 1192.7, subdivision (c). The
Attorney General argued subdivision (c)(28) of section 1192.7 resulted in Briceno’s
conviction becoming a serious felony.
       Section 1192.7, subdivision (c)(28) added to the list of serious felonies “any
felony offense, which would also constitute a felony violation of Section 186.22.” The
Supreme Court framed the issue as whether this language meant that only the substantive
offense of being an active member in a criminal street gang (§ 186.22, subd. (a)) was a
serious felony, or did the language now define a serious felony as any felony that the jury
concluded was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).
       The Supreme Court acknowledged the language of the statute was not clear on its
face, but concluded the intent of the voters who passed the ballot measure was to elevate
any felony committed for the benefit of a criminal street gang to a serious felony.
(Briceno, supra, 34 Cal.4th at p. 459.) Briceno argued this interpretation rendered
superfluous the addition of section 667.5, subdivision (c)(19) and (20), which added to
the list of violent felonies violations of sections 518 (extortion) and 136.1 (threats to
victims or witnesses) when they “would constitute a felony violation of Section 186.22 of
the Penal Code.” (§ 667.5, subd. (c)(19), (20).) The Supreme Court rejected this
argument.


       2The  trial court also found true Briceno had been convicted of being a felon in
possession of a firearm. The issue is identical to both convictions, so we will focus on
the carrying a concealed firearm conviction.



                                              4.
       “Specifically, extortion (§ 518) is a felony offense that becomes a violent
       felony when it is committed for the benefit of a criminal street gang under
       the section 186.22(b)(1) gang enhancement. (§ 667.5, subd. (c)(19).)
       Making threats to victims or witnesses (§ 136.1) is a serious felony
       (§ 1192.7, subd. (c)(37)) that becomes a violent felony when it is
       committed for the benefit of a criminal street gang under the section
       186.22(b)(1) gang enhancement. (§ 667.5, subd. (c)(20).) Section
       1192.7(c)(28), on the other hand, turns any felony offense that includes a
       gang enhancement under section 186.22(b)(1) into a serious felony. Thus,
       contrary to defendant’s claim, each of the above subdivisions has a
       different effect; there is no overlap among these provisions, which were all
       enacted by Proposition 21, suggesting that the voters thoughtfully enacted a
       comprehensive penalty and punishment scheme.” (Briceno, at p. 463.)
       While the question of whether section 667.5, subdivision (c)(20) caused a felony
violation of section 136.1 to become a violent felony when committed for the benefit of a
criminal street gang was not the issue before the Supreme Court, we find this analysis
compelling. Accordingly, we conclude Lopez’s conviction for violation section 136.1,
subdivision (a)(2) is a violent felony as defined in section 667.5, subdivision (c)(20)
because the crime was committed for the benefit of a criminal street gang. Since the
crime was a violent felony, the trial court properly imposed the 10-year enhancement.
                                      DISPOSITION
       The judgment is affirmed.




                                             5.
