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
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.
Copies to: All parties