People v. Lopez CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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