People v. Scott CA6

Filed 2/24/14 P. v. Scott CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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 1 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

1 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.)