Filed 2/24/14 P. v. Scott CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038492
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F21526)

         v.

VIOLET SCOTT,

         Defendant and Appellant.



         While in jail for assaulting his girlfriend, defendant Violet Scott telephoned his
girlfriend and told her not to testify against him. Defendant was charged by amended
information with attempting to dissuade a witness in violation of Penal Code
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section 136.1, subdivision (a)(2). It was further alleged that he was ineligible for
probation under section 1203, subdivision (k). Section 1203, subdivision (k) applies
where a defendant is convicted of a serious felony committed while on felony probation.
Defendant was on felony probation when he committed his violation of section 136.1.
Section 1192.7, subdivision (c)(37) provides that “intimidation of victims or witnesses, in
violation of Section 136.1” is a serious felony. (§ 1192.7, subd. (c)(37).)
         Defendant pleaded guilty to the section 136.1 count. However, he did not admit
the probation ineligibility allegation. Defendant waived his right to a jury trial on that


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         Subsequent references are to the Penal Code unless otherwise specified.
allegation, but he demurred to the allegation on the ground that the amended information
did not specify any act of intimidation. Defendant claimed that a violation of
section 136.1 was a serious felony only where there was an act of intimidation. The trial
court overruled the demurrer and found the allegation true, thereby rendering defendant
ineligible for probation. Defendant was committed to state prison for the lower term of
16 months.
       On appeal, defendant reiterates his contention that a violation of section 136.1,
subdivision (a)(2) is not a serious felony without proof of intimidation. The Second
District Court of Appeal rejected this same contention in People v. Neely (2004) 124
Cal.App.4th 1258 (Neely). The Second District began with the statutory language of
section 1192.7, subdivision (c)(37), and it noted that the “reference to Penal Code
section 136.1 is not limited by a reference to a specific subdivision, but encompasses the
entire section.” (Neely, at p. 1265.) The court then looked to section 7.5 to aid in its
construction of section 1192.7, subdivision (c)(37)’s language, and it concluded that the
code section took precedence over the descriptive language. (Neely, at p. 1265.)
       Defendant claims that Neely was “wrongly decided.” He maintains that
section 7.5 did not apply here because the language of section 1192.7, subdivision (c)(37)
was not “ambiguous” as the Second District found in Neely. We disagree. Section 7.5
states: “Whenever any offense is described in this code . . . as criminal conduct and as a
violation of a specified code section or a particular provision of a code section, in the
case of any ambiguity or conflict in interpretation, the code section or particular provision
of the code section shall take precedence over the descriptive language. The descriptive
language shall be deemed as being offered only for ease of reference unless it is
otherwise clearly apparent from the context that the descriptive language is intended to
narrow the application of the referenced code section or particular provision of the code
section.” (§ 7.5, bold and italics added.)



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       Section 136.1 contains no reference to intimidation, but the entire section has been
given the informal title of “ ‘Intimidation of Witnesses and Victims.’ ” (Neely, supra, 124
Cal.App.4th at p. 1266.) While this informal title does not resolve the meaning of the
reference in section 1192.7, subdivision (c)(37), the informal title, combined with the
absence of any intimidation requirement anywhere in section 136.1, compels the
conclusion that either the reference is to the entire section or it is ambiguous. We agree
with the Second District that section 7.5 therefore applies to section 1192.7, subdivision
(c)(37), which describes a serious felony offense as “intimidation of victims or witnesses,
in violation of Section 136.1.” This description includes both “a specified code section”
and “descriptive language.” Since it is not “clearly apparent from the context that the
descriptive language is intended to narrow” section 1192.7, subdivision (c)(37)’s
application, section 7.5 compels the conclusion that section 1192.7, subdivision (c)(37)’s
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reference is to the entire code section.
       Defendant’s reliance on People v. Haykel (2002) 96 Cal.App.4th 146 (Haykel) is
misplaced. The issue there was whether Haykel’s prior conviction for assault by means
of force likely to produce great bodily injury in violation of section 245 qualified as a
serious felony under section 1192.7, subdivision (c)(31). Section 1192.7, subdivision
(c)(31) applies to “assault with a deadly weapon, firearm, machinegun, assault weapon,
or semiautomatic firearm or assault on a peace officer or firefighter, in violation of
Section 245.” (§ 1192.7, subd. (c)(31).) Unlike section 1192.7, subdivision (c)(37), at
issue here, subdivision (c)(31)’s descriptive language expressly identified some, but not
all, of the prohibitions in section 245: subdivision (a)(1) [deadly weapon]; subdivision
(a)(2) [firearm]; subdivision (a)(3) [machinegun or assault weapon]; subdivision (b)


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       The only reference to intimidation in section 136.1 is in subdivision (d), which
concerns attempts. It states: “The fact that no person was injured physically, or in fact
intimidated, shall be no defense against any prosecution under this section.” This use of
“intimidated” suggests that it applies generally to all section 136.1 offenses.

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[semiautomatic firearm]; and subdivisions (c) and (d) [on peace officer or firefighter].
(§ 245, subds. (a)(1), (a)(2), (a)(3), (b), (c), (d).) What section 1192.7,
subdivision (c)(31) excluded from its description was one specific type of assault
prohibited by section 245: subdivision (a)(4), which applies to an assault by “means of
force likely to produce great bodily injury . . . .” (§ 245, subd. (a)(4).) Under these
circumstances, the Haykel court found that section 7.5 did not apply because the
reference was not ambiguous, and Haykel’s prior conviction for assault by means of force
likely to produce great bodily injury was not a serious felony conviction. That holding is
immaterial here where, unlike in Haykel, the descriptive language does not match some,
but not other, types of section 136.1 violations. The descriptive language does not match
any specific type of section 136.1 violation, which suggests that the reference was to the
entire section generally.
       Defendant wants us to conclude that section 1192.7, subdivision (c)(37) refers to
only subdivision (c)(1) of section 136.1. Section 136.1, subdivision (c)(1) makes no
reference to intimidation. Instead, it applies “[w]here the act is accompanied by force or
by an express or implied threat of force or violence.” (§ 136.1, subd. (c)(1).) Proposition
21, which created section 1192.7, subdivision (c)(37), also added to section 667.5,
subdivision (c)’s list of violent felonies section 667.5, subdivision (c)(20). Section 667.5,
subdivision (c)(20) identifies as a violent felony “[t]hreats 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), italics added.) If the voters had really meant
section 1192.7, subdivision (c)(37)’s reference to refer to only section 136.1,
subdivision (c)(1), the voters would have used the “threats” language that they used in
adding subdivision (c)(20) to section 667.5. Notably, section 136.1, subdivision (c)(1)
expressly refers to “threats” but says nothing about intimidation. Defendant’s argument
assumes that the voters meant the same thing when they used different language. “Where
different words or phrases are used in the same connection in different parts of a statute,

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it is presumed the Legislature [or the electorate] intended a different meaning.” (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117.) This
presumption compels rejection of defendant’s argument.
       The judgment is affirmed.




                                          _______________________________
                                          Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.




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