People v. Nelson

Filed 9/15/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E061050

v. (Super.Ct.No. SWF1301983)

ERIC SCOTT NELSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed in part, reversed in part, and remanded for resentencing.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant.

____________________
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of parts III, IV, V, and VI.

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 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson,

Lynne G. McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff and

Respondent.

Defendant Eric Scott Nelson was going through a contentious divorce. After his

friend Laura Tatarzyn mentioned getting a hit man to kill her boyfriend, defendant started

talking to her — seemingly seriously — about having the same hit man kill his wife. He

said to Tatarzyn, “You should ask for a two-for-one deal.” Tatarzyn told defendant’s

wife, who told the police.

Juan Anguiano, an undercover officer, contacted defendant and pretended to be the

hit man. He asked, “[Y]ou have a job for me[,] right?” Defendant said, “Yes.” They

agreed to meet at a Walmart in two days. At Anguiano’s request, defendant agreed to

bring a photograph, an address, and $300. Meanwhile, however, defendant’s girlfriend

learned that he was planning to have his wife killed. She threatened to leave him if he

went through with it, and he did not go to the meeting.

Nevertheless, defendant was arrested for solicitation of murder. While he was in

jail, he phoned his wife, in violation of a restraining order. He also phoned his girlfriend

and tried to talk her into recanting her statements incriminating him.

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 The charges against defendant and the outcome of those charges were as follows:

Count Charge Statute Outcome

1 Solicitation to commit Pen. Code, § 653f, Guilty verdict
murder subd. (b)

2 Carrying a concealed, loaded, Pen. Code, § 25400, Guilty plea
unregistered firearm subds. (a)(2), (c)(6)

3 Violating a restraining order Pen. Code, § 273.6, Guilty verdict
subd. (a)

4 Dissuading a witness on Pen. Code, § 136.1, Guilty verdict
August 29, 2013 subd. (a)(1)

5 Dissuading a witness on Pen. Code, § 136.1, Hung jury; dismissed
September 16, 2013 subd. (a)(1)

Defendant was sentenced to a total of eight years in prison, calculated as follows:

(1) On Count 1, the principal term, six years (the midterm); (2) on Count 2, two years (the

midterm), to be served concurrently; (3) on Count 3, a misdemeanor, one year, to be

served concurrently; and (4) on Count 4, two years (the midterm), to be served

consecutively.

Defendant appeals.1 In the published portion of this opinion, we will hold that

defendant could commit solicitation of murder by soliciting Tatarzyn to solicit an

1 Defendant has also filed a petition for writ of habeas corpus (case
No. E062035). We ordered the writ petition considered with this appeal for the purpose
of determining whether an order to show cause should issue. However, the two cases
have not been consolidated. Thus, we will rule on the petition by separate order.

3
unnamed hitman. In the unpublished portion of this opinion, we will hold that

defendant’s conviction for dissuading a witness must be reversed; otherwise, we find no

prejudicial error. Accordingly, we will reverse in part and remand for resentencing.

I

FACTUAL BACKGROUND

Defendant and Jane Doe2 were married in 1988. In January 2013, Doe told

defendant that she was going to get a divorce. However, they continued to live in the

same house. They had various disagreements about property division, spousal support,

child support, and child custody. As a result, defendant was angry and “very unhappy.”

In April 2013, defendant rented a house on his property to Laura Tatarzyn. They

became friends. Defendant discussed his problems with his wife with Tatarzyn “[e]very

day.”

Meanwhile, Tatarzyn was having problems of her own with Edgar, the father of

her child. In June 2013, her friend Yoshi said jokingly, “[You] could always go find

somebody in T[ijuana] to go take care of it,” meaning that she could hire someone to kill

Edgar.

Tatarzyn told defendant about her conversation with Yoshi. Defendant seemed to

find it funny. However, a week or two later, he asked her for Yoshi’s phone number. He

2 The trial court ordered that defendant’s wife be referred to by this fictitious
name. (See Pen. Code, § 293.5.)

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explained that “he was having a really rough time with his wife . . . .” Tatarzyn claimed

she did not have the number.

On July 12, 2013, defendant asked again for Yoshi’s phone number. He said that

he needed someone to “take care of” his wife, because he was desperate and there was no

other way out. Tatarzyn said that she was going to Tijuana for other reasons, and while

she was there, she would “take care of” Edgar. Defendant said, “You should ask for a

two-for-one deal.”

That same day, Tatarzyn contacted Doe. She told Doe that defendant had asked

her for the phone number of a hit man and she was in fear for Doe’s life. Later that day,

Doe called the police. As a result, Investigator Robert Cornett interviewed Tatarzyn.

Meanwhile, Tatarzyn went to Tijuana to go to a party. While she was there, she

texted defendant that she was buying “pig meat” from a “farmer” whom Yoshi knew for

$1,000. She intended this to be “code” meaning that the hit man charged $1,000. She

thought defendant would understand because he slaughtered pigs. When he did not seem

to understand, however, she also texted, “I’m not talking about pigs. Think Scott. Why

am I going to Tijuana?” He replied, “Yes I understand the menu now.”

That night, when Tatarzyn got back, she talked to defendant about the supposed hit

man in Tijuana. Unbeknownst to him, she recorded the conversation. The recording was

admitted into evidence and played for the jury. Among other things, they said:

“TATARZYN: So I went to TJ.

“NELSON: How’d that go? [¶] . . . [¶] . . .

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 “TATARZYN: . . . So I told him that . . . you were interested.

“NELSON: Yeah.

“TATARZYN: So. The, the way it would be pretty nifty too.

“NELSON: Really?

“TATARZYN: Yeah. It’s a barrel of they, they just, he just does it and then he

puts it in a barrel with tar mixed with oil and so I guess the consist . . . the consistency is,

it doesn’t, cause when you go back across the border it doesn’t, they don’t scan. So you’d

take it back across the border as like [p]etrol and then from there it’s just, nobody cares.

So apparently he’s done like seventeen so far.

“NELSON: Shit.

“TATARZYN: So if you want, he said he’d come up here, he just needs like two

or three days cause he’s doing something else.

“NELSON: Yeah. [¶] . . . [¶] . . .

“TATARZYN: . . . I mean he’ll be up here in a couple of days.

“NELSON: Yeah, [w]ell he’s, think he’s pretty clean and professional.

“TATARZYN: Yeah. It’s [c]artel for you. They don’t, they don’t mess around.

“NELSON: Yeah, cause you wouldn’t believe the shit that[’]s . . .

“TATARZYN: What happened?

“NELSON: No, it’s just constant. It gets worse and worse you know. It’s just

constant attacking me . . . . [¶] . . . [¶] . . .

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 “NELSON: Blah, blah you’re such an asshole. You, you’re never going to see the

kids on Thanksgiving and it’s just like ______. It’s just constant.

“TATARZYN: But are you willing to go through with it the whole way, cause

...?

“NELSON: Yeah, well how would I, I mean, I’ll, will I have to be somewhere that

I will have a witness or . . . ?

“TATARZYN: Don’t you work a job?

“NELSON: Well. Yeah I don’t have a supervisor. I’m with Jonathan but . . .

“TATARZYN: All he needs he said is two hours.

“NELSON: Hmm. How could that be uh, hmm, two hours like he’d have, like

he’s want to come here, or?

“TATARZYN: No, he just needs, I mean he’ll talk to you. I don’t know the

details, cause . . .

“NELSON: Have to be worked out?

“TATARZYN: Yeah, he’ll have to talk to you. [¶] . . . [¶] . . .

“NELSON: But yeah, so a thousand bucks?

“TATARZYN: Thousand bucks.”

Investigator Cornett arranged for Investigator Juan Anguiano, an undercover

officer, to pretend to be a hit man from Tijuana.

On or about July 17, 2013, Tatarzyn gave defendant Anguiano’s phone number.

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 On July 18, 2013, Tatarzyn asked defendant if he had used the phone number; he

said “No, not yet.”

On July 19, 2013, defendant told Tatarzyn that he needed to figure out how to call

the phone number without being traced. She let him use her phone. He placed a call, but

there was no answer. Tatarzyn texted Investigator Cornett and told him the call had not

gone through.

About an hour later, Anguiano phoned Tatarzyn, and she handed her phone to

defendant. A recording of the call was admitted into evidence and played for the jury. In

it, there was this exchange:

“UC OFFICER: Ah, who do you wish to talk to . . . ?

“NELSON: Oh, [Tatarzyn] said there’s somebody that ah, who you meet me and

ah, discuss some things. Maybe get some tacos.

“UC OFFICER: Oh, I, you are, you, you have ah, you have a job for me right?

“NELSON: Yes.”

Defendant and Anguiano agreed to meet on Sunday at noon at the Walmart in

Murrieta. Anguiano requested a photograph and an address. Defendant said he

understood and added, “No problem.” Anguiano asked, “Um, you’re going to give me

three hundred . . . ?” Defendant said, “Okay.”

On July 20, 2013, defendant told his girlfriend, Vivian Levinson, “I know someone

that can get rid of my wife[.]” He said he had an appointment to meet the person the

following day. She cried and “begged him not to do this.” She added that “[i]f he was to

8
proceed with it, [she] couldn’t be with him anymore.” Defendant replied, “That’s fine.

. . . I’ll take care of it and stop it.”

The next day, July 21, 2013, early in the morning, Levinson heard defendant

sending a text message. That same day, Tatarzyn received a text from defendant saying,

“Gonna pass on Guido’s services. Thank you[.]” Later, defendant told Levinson, “You

saved someone’s life today.”

On July 22, 2013, defendant was arrested. An emergency protective order was

issued and served on defendant prohibiting him from contacting Doe or his children.

Nevertheless, defendant placed three calls to his home phone from jail.

Meanwhile, Investigator Cornett obtained a statement from Levinson.

On August 29, 2013, in a phone call from jail, defendant told Levinson to contact

his criminal defense attorney who would “coach her on her statement.” He claimed her

statement was the only reason why he was still in jail. He said she should “make it right”

by “reversing [her] statement.”

On September 16, 2014, defendant sent Levinson a letter from jail saying, “I

would be free this minute if they had not told you what to say.” He added, “I don’t . . .

know who threatened you. I trust that you feared . . . .” He continued, “I am not judging

you. . . . Please make right the statements made under duress.”

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 II

THE SUFFICIENCY OF THE EVIDENCE OF SOLICITATION OF MURDER

Defendant contends that there was insufficient evidence of solicitation of murder.

With respect to solicitation of Tatarzyn, defendant argues that he only asked her to

ask a hit man in Tijuana for “a two-for-one deal.” Thus, he solicited her to solicit

someone else to commit murder, which, he argues, is not a crime.

With respect to solicitation of Anguiano, defendant argues that it was Anguiano

who solicited him, by saying, “[Y]ou have a job for me[,] right?”

We will hold that there was sufficient evidence that defendant solicited Tatarzyn.

Thus, we need not decide whether there was sufficient evidence that he solicited

Anguiano.

“‘“When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence — that is, evidence that is reasonable,

credible, and of solid value — from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

[Citation.] In so doing, a reviewing court “presumes in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’

[Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.)

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 “Every person who, with the intent that the crime be committed, solicits another to

commit or join in the commission of murder” is guilty of solicitation of murder. (Pen.

Code, § 653f, subd. (b).)

“The essence of criminal solicitation is an attempt to induce another to commit a

criminal offense. [Citations.] [¶] Consistent with this conception, a defendant can

ordinarily be convicted under a general solicitation statute only if, had the solicitation

been successful, the person solicited would have been guilty of the underlying offense.”

(People v. Herman (2002) 97 Cal.App.4th 1369, 1381-1382, fn. omitted.)

A person can be guilty of a crime as a perpetrator or as an aider and abettor. (Pen.

Code, § 31.) “An aider and abettor is one who acts ‘with knowledge of the criminal

purpose of the perpetrator and with an intent or purpose either of committing, or of

encouraging or facilitating commission of, the offense.’ [Citation.]” (People v. Chiu

(2014) 59 Cal.4th 155, 161.) Thus, a person who successfully solicits another person to

commit a crime is equally guilty of that crime, as an aider and abettor. It follows that a

person who solicits a second person to solicit a third person to commit a crime has

essentially solicited the second person to commit the identical crime.

“In the usual solicitation case, it is the solicitor’s intention that the criminal result

be directly brought about by the person he has solicited; that is, it is his intention that the

crime be committed and that the other commit it as a principal in the first degree, as

where A asks B to kill C. However, it would seem sufficient that A requested B to get

involved in the scheme to kill C in any way which would establish B’s complicity in the

11
killing of C were that to occur. Thus it would be criminal for one person to solicit

another to in turn solicit a third party . . . .” (2 LaFave, Substantive Criminal Law (2003)

§ 11.1(c) at pp. 195-196, fns. omitted.)

While we have not found any California cases on point, out-of-state cases so hold.

For example, in Commonwealth v. Wolcott (2010) 77 Mass.App.Ct. 457 [931 N.E.2d

1025], the defendant told her cousin that she wanted her husband to “‘just disappear’” and

asked if he knew someone who could help. (Id. at p. 458.) On appeal, she argued “that

without proof of her intent that [her cousin] personally kill her husband, there can be no

conviction for solicitation.” (Id. at p. 466.) The appellate court disagreed. It explained:

“There is no legal distinction between someone who commits a murder as an accessory as

opposed to a principal; therefore, an individual who ‘procures’ a murder also ‘commits’

murder in the eyes of the law. [Citation.] Thus, if [the cousin] had acceded to the

defendant’s request and had found someone else to murder the defendant’s husband, and

that person had in turn personally killed her husband, [the cousin] would have been

indictable for a felony. Whether the defendant solicited [the cousin] to personally kill her

husband or to find another to do so is thus of no consequence. Either act constitutes a

felony, and under either fact pattern, the defendant would be guilty of soliciting a felony.”

(Id. at p. 467.)

Similarly, in Moss v. State (Okla.Crim.App. 1994) 888 P.2d 509, the defendant

argued that the evidence showed that she asked one Mr. Cravens to find someone else

who would kill her husband, and that this did not constitute a crime. (Id. at p. 517; see id.

12
at p. 513.) The appellate court held that the Oklahoma solicitation statute “cover[ed]

solicitation of another to find a ‘hit man.’ If we were to hold otherwise, all one would

have to do is place a third (or more) person in the chain and escape judgment; this does

not make sense. The heart of the crime is the solicitation.” (Id. at p. 517; accord, Meyer

v. State (1981) 47 Md.App. 679, 686; State v. Furr (1977) 292 N.C. 711, 720-721;

Johnson v. State (Tex.Crim.App. 1983) 650 S.W.2d 784, 787; State v. Yee (Wis.Ct.App.

1990) 160 Wis.2d 15, 17-18.)

In his reply brief, defendant argues that he “merely asked . . . Tatarzyn to inquire

about whether it would be possible to get a discount”; he did not ask Tatarzyn to inquire

about actually killing his wife. Defendant forfeited this argument by failing to raise it in

his opening brief. (People v. Bryant (2014) 60 Cal.4th 335, 408.) We address it anyway,

because it is readily disposed of.

A solicitation that is made subject to a condition is criminal, even if the condition

is never fulfilled. (2 LaFave, supra, § 11.1(c) at pp. 197-198.) “In all likelihood, most

criminal ‘solicitations,’ as the word is commonly understood, carry conditional offers of

various types of compensations and are probably declined by the solicited party, but

solicitations they would be nonetheless. [Citation.]” (Gardner v. State (1979) 41

Md.App. 187, 201.) “The crime of solicitation . . . is completed by the solicitation itself,

whether or not . . . the person solicited immediately rejects it. [Citations.]” (In re

Ryan N. (2001) 92 Cal.App.4th 1359, 1377-1378.)

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 Asking a hit man if you can have a two-for-one deal is, in essence, offering to pay

him to commit murder, on the condition that he agree to do so for a discount price. The

hit man may decline, but the crime of solicitation has nevertheless been committed. At a

minimum, under the deferential substantial evidence standard of review, the jury could

reasonably conclude that defendant was asking Tatarzyn to ask a hit man to murder his

wife.

Defendant also argues, albeit briefly, that there was insufficient evidence that he

had actually formed the intent that his wife be murdered. “Solicitation consists of the

asking of another to commit one of the specified crimes with intent that the crime be

committed. The intent may be inferred from the circumstances of the asking. [Citation.]”

(People v. Gordon (1975) 47 Cal.App.3d 465, 472, disapproved on other grounds in Stark

v. Superior Court (2011) 52 Cal.4th 368, 407, fn. 15.)

Here, defendant had a motive to have his wife murdered. Tatarzyn believed that

defendant actually meant to harm his wife — so much so that she contacted Doe. When

Tatarzyn returned from Tijuana and told defendant about her supposed conversation with

the hit man, he said he was “willing to go through with it the whole way.” Then when

Tatarzyn put him in touch with Anguiano, defendant confirmed that he had a “job” for

Anguiano. Defendant agreed to meet with Anguiano on Sunday at noon and to bring an

address, a photo, and $300.

Defendant argues that, after Tatarzyn gave him Anguiano’s phone number, he did

not call Anguiano for two days, and then only after Tatarzyn supposedly “pressured” him.

14
At the time, however, defendant explained that he needed to figure out how to make the

call without it being traced. Defendant also points out that he did not actually go to the

meeting with Anguiano. It was abundantly clear, however, that this was only because

Levinson had changed his mind.

Even more to the point, “[i]n deciding the sufficiency of the evidence, a reviewing

court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution

of conflicts and inconsistencies in the testimony is the exclusive province of the trier of

fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)

We therefore conclude that there was sufficient evidence to support defendant’s

conviction for solicitation of murder.3

III

FAILURE TO DEFINE “JOIN IN THE COMMISSION”

Defendant contends that the jury instruction regarding solicitation to commit

murder erroneously failed to define the phrase “join in the commission.”

3 Defendant also argues that, because solicitation of Tatarzyn was “a legally
inadequate theory,” and because the record does not indicate whether the verdict was
based on solicitation of Tatarzyn or solicitation of Anguiano, his conviction for
solicitation of murder must be reversed. As just discussed, however, we do not agree that
solicitation of Tatarzyn was a legally inadequate theory.

Defendant claims that there was insufficient evidence of solicitation of Anguiano,
but he does not claim that solicitation of Anguiano was a legally inadequate theory.

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 A. Additional Factual and Procedural Background.

Regarding solicitation to commit murder, the trial court instructed the jury, as

pertinent here:

“The defendant is charged in Count 1 with soliciting another person to commit a

crime in violation of Penal Code section 653f.

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant requested, asked or invited another person to commit or join in

the commission of the crime of murder;

“2. The defendant intended that the crime of murder be committed; and

“3. The other person received the communication containing the request.”

(CALCRIM No. 441.)

B. Discussion.

“‘It is settled that in criminal cases, even in the absence of a request, the trial court

must instruct on the general principles of law relevant to the issues raised by the evidence.

[Citations.] The general principles of law governing the case are those principles closely

and openly connected with the facts before the court, and which are necessary for the

jury’s understanding of the case.’ [Citations.]” (People v. Diaz (2015) 60 Cal.4th 1176,

1189.)

“A court has no sua sponte duty to define terms that are commonly understood by

those familiar with the English language, but it does have a duty to define terms that have

a technical meaning peculiar to the law. [Citations.] ‘[T]erms are held to require

16
clarification by the trial court when their statutory definition differs from the meaning that

might be ascribed to the same terms in common parlance.’ [Citation.]” (People v. Bland

(2002) 28 Cal.4th 313, 334.)

Here, the prosecution argued that defendant solicited Anguiano to kill his wife. In

such a case, “commit,” as well as “join in the commission,” have no technical meaning,

beyond the legal definition of murder itself.

However, the prosecution also argued that defendant solicited Tatarzyn to solicit a

hit man to kill his wife. As we indicated in part II, ante, a person can commit a crime as a

perpetrator or as an aider and abettor. Thus, as we concluded, this could also constitute

solicitation to commit murder. However, under these circumstances, “commit” and “join

in the commission” may have a technical legal meaning that turns on the technical legal

meaning of aiding and abetting.4

Here, however, the failure to give aiding and abetting instructions was harmless

under any standard. The jury did not have to decide whether Tatarzyn actually was an

aider and abettor; plainly she was not. It only had to decide whether what defendant was

asking her to do was to aid and abet. Under the circumstances of this case, the key

question in this determination was whether defendant himself had the necessary intent.

Defense counsel was free to argue (and did argue) that defendant either was not serious or

4 Similarly, a person can commit a crime vicariously as a conspirator.
(People v. Zacarias (2007) 157 Cal.App.4th 652, 656.) Thus, “commit” and “join in the
commission” could have an additional technical legal meaning based on conspiracy.

17
else was merely asking Tatarzyn to obtain information. If, however, the jury found that

defendant did intend that murder be committed, then almost by definition, he was asking

Tatarzyn to aid and abet that murder. (See part II, ante.) It is inconceivable that, even if

the jury had been given aiding and abetting instructions, it would have come to a more

favorable verdict.

IV

THE SUFFICIENCY OF THE EVIDENCE OF DISSUADING A WITNESS

Defendant contends that there was insufficient evidence of dissuading a witness.

He concedes that he tried to get Levinson to change her testimony but argues that there is

no evidence that he tried to prevent her from testifying.

Dissuading a witness can be committed by:

“(1) Knowingly and maliciously prevent[ing] or dissuad[ing] any witness or

victim from attending or giving testimony at any trial, proceeding, or inquiry authorized

by law.” (Pen. Code, § 136.1, subd. (a)(1).)

“(2) Knowingly and maliciously attempt[ing] to prevent or dissuade any witness

or victim from attending or giving testimony at any trial, proceeding, or inquiry

authorized by law.” (Pen. Code, § 136.1, subd. (a)(2).)5

5 The information alleged only dissuading a witness under Penal Code
section 136.1, subdivision (a)(1). However, the jury was instructed that the crime could
also be committed by “trying to prevent or discourage” a witness from testifying. (Italics
added.) Thus, it was essentially allowed to find defendant guilty, alternatively, under
Penal Code section 136.1, subdivision (a)(2).

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 The evidence showed that defendant asked Levinson to “make right [her]

statements” and to let his attorney “coach” her. In other words, he asked her to testify

untruthfully. There is no evidence that he asked her not to testify at all; the People do not

argue otherwise. The question, then, is whether attempting to prevent or dissuade a

witness from testifying truthfully satisfies the statute.

“In construing [a] statute, ‘we are guided by the overarching principle that our task

“‘is to determine the intent of the enacting body so that the law may receive the

interpretation that best effectuates that intent. [Citation.]’”’ [Citation.] Our analysis

begins with the language of the statute, which ‘“generally is the most reliable indicator of

legislative intent.”’ [Citation.] ‘“‘“When the language of a statute is clear, we need go

no further.” [Citation.] But where a statute’s terms are unclear or ambiguous, we may

“look to a variety of extrinsic aids, including the ostensible objects to be achieved, the

evils to be remedied, the legislative history, public policy, . . . and the statutory scheme of

which the statute is a part.”’ [Citation.]” [Citation.]’ [Citations.]” (In re R.V. (2015) 61

Cal.4th 181, 192-193.)

The plain language of the statute requires an attempt to dissuade a witness “from

attending or giving testimony.” A witness who testifies falsely, by definition, does attend

and does give testimony. Thus, the statute, on its face, does not encompass an effort to

get a witness to testify falsely.

People v. Womack (1995) 40 Cal.App.4th 926 came to the same conclusion based

on an examination of the statutory scheme. There, the defendant and several accomplices

19
attacked a witness who was cooperating in the prosecution of a third person, saying that

“he should have kept his mouth shut.” (Id. at pp. 928-929.) The defendant was convicted

of attempted murder and of attempting to induce a witness to give false testimony (Pen.

Code, § 137, subd. (b)). (Womack, supra, at p. 928.)

The appellate court held that these verdicts were inconsistent and that there was

insufficient evidence to support the conviction for attempting to induce a witness to give

false testimony. (People v. Womack, supra, 40 Cal.App.4th at p. 929.) It stated: “The

entire sense of Penal Code section 137 is that testimony will be given, but the perpetrator

will attempt to influence the testimony given. This is clear from a comparison of the

language of sections 136.1 and 138. Section 138 punishes anyone ‘who gives or offers or

promises to give to any witness or person about to be called as a witness, any bribe upon

any understanding or agreement that the person shall not attend upon any trial or other

judicial proceeding, or . . . who attempts by means of any offer of a bribe to dissuade any

person from attending upon any trial or other judicial proceeding.’ [Citation.] Section

136.1 punishes anyone who ‘[k]nowingly and maliciously prevents or dissuades any

witness or victim from attending or giving testimony at any trial, proceeding, or inquiry

authorized by law’ or from attempting to do so. [Citation.] These sections clearly

contemplate that the perpetrator will prevent or dissuade a prospective witness from

giving testimony, or will attempt to do so. Preventing or dissuading a witness from

testifying altogether is incompatible with influencing or shaping the testimony the witness

gives.

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 “To interpret these sections of part I, title 7, chapter 6 of the Penal Code,

‘falsifying evidence, and bribing, influencing, intimidating or threatening witnesses,’ in

any other fashion is to render sections 136.1 and 138 redundant. If preventing or

dissuading a witness from testifying is included in inducing a witness to withhold true

testimony, as the People argue, then sections 136.1 and 138 are surplusage.” (People v.

Womack, supra, 40 Cal.App.4th at pp. 930-931, italics omitted and capitalization altered.)

Womack is persuasive, and we see no reason not to follow it. Accordingly,

defendant’s conviction for dissuading a witness in violation of Penal Code section 136.1

must be reversed. Defendant could have been convicted of attempting to induce a witness

to testify falsely in violation of Penal Code section 137, but he was not charged with it,

and it is not a lesser included offense; accordingly, we cannot simply modify the

judgment. Moreover, defendant cannot be retried on this charge. (Kellett v. Superior

Court (1966) 63 Cal.2d 822, 827; Sanders v. Superior Court (1999) 76 Cal.App.4th 609,

616-617.)

V

THE ADMISSION OF THE RECORDING OF

TATARZYN’S CONFIDENTIAL CONVERSATION WITH DEFENDANT

Defendant contends that the trial court erred by admitting Tatarzyn’s

surreptitiously recorded conversation with him.

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 A. Additional Factual and Procedural Background.

When the prosecutor proposed to play the recording for the jury, defense counsel

objected that it had been made without defendant’s consent and thus illegally. The trial

court overruled the objection.

At the next break, the trial court commented, “It looks like Penal Code section

63[3].5 provides an exception to the recording of confidential communications where . . .

one party to the confidential communication reasonably believes the communications

relate to the commission of a crime, a felony, involving violence against the person.”

B. Discussion.

“‘[A]n appellate court applies the abuse of discretion standard of review to any

ruling by a trial court on the admissibility of evidence.’ [Citation.] A trial court has

abused its discretion when its ruling ‘“fall[s] ‘outside the bounds of reason.’”’

[Citation.]” (People v. Kopatz (2015) 61 Cal.4th 62, 85.)

Penal Code section 632, as relevant here, provides:

“(a) Every person who, intentionally and without the consent of all parties to a

confidential communication, by means of any electronic amplifying or recording device,

. . . records the confidential communication . . . shall be punished . . . . [¶] . . .

“(c) The term ‘confidential communication’ includes any communication carried

on in circumstances as may reasonably indicate that any party to the communication

desires it to be confined to the parties thereto . . . .

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 “(d) . . . [N]o evidence obtained as a result of . . . recording a confidential

communication in violation of this section shall be admissible in any judicial . . .

proceeding.”

Penal Code section 633.5, again as relevant here, provides:

“Nothing in Section . . . 632 . . . prohibits one party to a confidential

communication from recording the communication for the purpose of obtaining evidence

reasonably believed to relate to the commission by another party to the communication of

. . . any felony involving violence against the person . . . . Nothing in Section . . . 632 . . .

renders any evidence so obtained inadmissible in a prosecution for . . . any felony

involving violence against the person . . . .”

Defendant argues that he was not charged with a felony involving violence against

the person. In particular, he argues that solicitation to commit murder is not a felony

involving violence against the person because (1) it does not come under part 1, title 8

(sections 187-248) of the Penal Code, entitled “Of Crimes Against the Person,” and (2) it

is not listed as a “violent felony” in Penal Code section 667.5, subdivision (c).

Once again (see part IV, ante), we start with the plain meaning of the statute. The

Legislature could have specified a felony “requiring” violence or a felony that has

violence as an “element”; instead, it specified a felony “involving” violence, a much

broader term. Solicitation of murder is a felony “involving” violence because it

“involves” murder; it requires the defendant to take a step toward causing the commission

of a murder and to have the intent that murder be committed.

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 Penal Code section 633.5 is intended to allow potential victims and witnesses to

record certain conversations as evidence. Typically, these are laypeople. They may be

acting in fear and/or under urgent circumstances. Thus, we do not believe the Legislature

intended the words “involving violence” to have some hierophantic legal meaning

derived from otherwise unrelated sections of the Penal Code.

It has been held that solicitation of murder is a crime of violence for purposes of

the multiple victim exception to Penal Code section 654. (People v. Davis (1989) 211

Cal.App.3d 317, 323-324; People v. Williams (1988) 201 Cal.App.3d 439, 445-446;

People v. Cook (1984) 151 Cal.App.3d 1142, 1147.) We conclude that it is equally a

felony involving violence for purposes of Penal Code section 633.5. It follows that the

trial court did not err by admitting the recording.

VI

PROSECUTORIAL ERROR

Defendant raises several claims of prosecutorial misconduct.

A. General Legal Principles.

“‘“‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

denial of due process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury.’ . . . To preserve a claim of prosecutorial misconduct for appeal, a defendant

24
must make a timely and specific objection and ask the trial court to admonish the jury to

disregard the improper argument.”’ [Citation.]” (People v. Charles (2015) 61 Cal.4th

308, 327.)

“‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the extent

that it suggests a prosecutor must act with a culpable state of mind. A more apt

description of the transgression is prosecutorial error.’ [Citation.]” (People v. Centeno

(2014) 60 Cal.4th 659, 666-667.)

B. Forfeiture.

Preliminarily, defense counsel did not object to any of the asserted instances of

misconduct. A fortiori, he also did not request an admonition regarding them. Thus,

defendant’s present contentions have been forfeited.

Defendant relies on People v. Lambert (1975) 52 Cal.App.3d 905, which stated

that a prosecutorial misconduct claim “may be considered absent an objection and request

for admonition if . . . ‘the case is closely balanced and there is grave doubt of defendant’s

guilt, and the acts of misconduct are such as to contribute materially to the verdict’ . . . .

[Citation.]” (Id. at p. 908.)

While Lambert itself has never been expressly overruled, the cases on which it

relied — People v. Perry (1972) 7 Cal.3d 756 and People v. Berryman (1936) 6 Cal.2d

331 — were overruled on this point in People v. Green (1980) 27 Cal.3d 1, 28-34,

overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233–237 and

People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3. Thus, “[t]he ‘close case’ exception relied

25
upon by defendant to avoid the waiver bar is no longer recognized. [Citation.]” (People

v. Cain (1995) 10 Cal.4th 1, 48; accord, People v. Carrera (1989) 49 Cal.3d 291, 321;

People v. Bonilla (2007) 41 Cal.4th 313, 336.)

Defendant also argues that we have discretion to reach a prosecutorial misconduct

claim that has not been preserved for review. (People v. Williams (1998) 17 Cal.4th 148,

161.) We see no reason to exercise that discretion in this case.

Despite the forfeiture, we will also discuss defendant’s prosecutorial claims on the

merits, although — as will be seen — solely as an alternative ground for rejecting them.

C. Appeal to Passion and Prejudice.

In his rebuttal closing argument, the prosecutor stated:

“I’m sure you’ve all seen one of these before, a no soliciting sign in the window of

someone’s house. Maybe you have one yourself. Okay. It’s no different than if the

[G]irl [S]cout comes to the door, knocks on the door, person, answers the door. And . . .

the person asks, ‘Are you selling me cookies?’ And the [G]irl [S]cout says, ‘Yes.’ Has

the [G]irl [S]cout violated the no soliciting sign? Yes. Have they talked about what kind

of cookies, how much they are, anything else? No. The details haven’t been worked out.

It doesn’t matter. . . .

“ . . . I urge you, please, please don’t make the police wait to figure out what’s

going to happen in these situations. Don’t send that message. The objective here is to

catch this person before something happens. In this case, they did.”

26
 Defendant contends that this argument was an improper appeal to passion and

prejudice.

“‘It is, of course, improper to make arguments to the jury that give it the

impression that “emotion may reign over reason,” and to present “irrelevant information

or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an

irrational, purely subjective response.” [Citation.]’ [Citation.]” (People v. Linton (2013)

56 Cal.4th 1146, 1210.)

Under federal case law, “[a] prosecutor may not urge jurors to convict a criminal

defendant in order to protect community values, preserve civil order, or deter future

lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be

convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be

persuaded by such appeals to believe that, by convicting a defendant, they will assist in

the solution of some pressing social problem. The amelioration of society’s woes is far

too heavy a burden for the individual criminal defendant to bear.” (United States v.

Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149; accord, United States v. Johnson (8th

Cir. 1992) 968 F.2d 768, 769-771; United States v. Solivan (6th Cir. 1991) 937 F.2d 1146,

1153.)

More generally, however, “appeals to the jury to act as the conscience of the

community are permissible, so long as they are not intended to inflame.” (United States

v. Fields (5th Cir. 1996) 72 F.3d 1200, 1208, fn. omitted; accord, United States v. Grauer

(8th Cir. 2012) 701 F.3d 318, 323; United States v. Lester (9th Cir. 1984) 749 F.2d 1288,

27
1301; see also People v. Adanandus (2007) 157 Cal.App.4th 496, 513 [“The

prosecution’s references to the idea of restoring law and order to the community were an

appeal for the jury to take its duty seriously, rather than efforts to incite the jury against

defendant.”].)

“[A] court should not lightly infer that a prosecutor intends an ambiguous remark

to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will

draw that meaning from the plethora of less damaging interpretations.” (Donnelly v.

DeChristoforo (1974) 416 U.S. 637, 647.)

The prosecutor’s argument here, although framed in terms of sending a message,

was not inflammatory. He did not ask the jury to convict defendant to correct some

broader social evil. He was merely explaining the legal meaning of solicitation by

referring to the public policy considerations underlying it. Solicitation, unlike attempt,

does not require a direct, unequivocal act toward committing the underlying crime.

(People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494.) Hence, it allows the police to

proactively prevent worse crimes from occurring.

Accordingly, this argument did not constitute prosecutorial error.

D. Mischaracterization of the Evidence.

According to the evidence at trial, on Friday, July 12, 2013, after Doe called the

police, a female deputy phoned Tatarzyn. Tatarzyn asked if it would be appropriate to

record her conversations with defendant; the female deputy said yes.

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 On Monday, July 15, 2013, however, when Tatarzyn spoke to Investigator Cornett,

he told her not to make a recording, because “[he] didn’t want to put her in danger.”

Tatarzyn also testified:

“Q. . . . [Y]ou made that recording Monday night on behalf of the police

department, didn’t you?

“A. Yes.

“Q. Because . . . the deputy on Friday told you to make a recording; right?

“A. If I felt the need to, yes.”

At the request of defense counsel, the trial court gave a jury instruction on

entrapment. (CALCRIM No. 3408.) This stated, in part: “A person is entrapped if a law

enforcement officer or the officer’s agent engaged in conduct that would cause a normally

law-abiding person to commit the crime.” It also stated: “As used here, agent is a person

who does something at the request, suggestion, or direction of an officer.”

In his closing argument, defense counsel claimed that Tatarzyn had entrapped

defendant. For example, he asserted: “[S]he’s trying to sell this job. . . . [S]he’s really

pushing this thing.” “[Defendant] never mentioned hitman until she brought it up.” He

also asserted that Tatarzyn was acting as an agent of the police: “[S]he seemed to be the

lead investigating officer and prosecutor in this case.” “And remember, she’s doing this

on behalf of the sheriff’s department. The gal, the deputy on the phone told her to record

the conversation with [defendant].”

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 In his rebuttal closing argument, the prosecutor stated: “An agent is a person that

does something at the request, suggestion, or direction of an officer. When Officer

Cornett said, ‘Do not record him,’ [Tatarzyn] was not acting as an agent. Even though

that earlier officer may have suggested, ‘Well, maybe you can try to record it,’ another

officer after that said, ‘Don’t do that. It’s not safe for you. I don’t want you to do it.’ So

when she records him, she’s not an agent.”

Defendant contends that the prosecutor mischaracterized the evidence by stating

that Tatarzyn was not an agent of the police.

It is misconduct to “misstate or mischaracterize the evidence [citation] . . . .”

(People v. Zambrano (2007) 41 Cal.4th 1082, 1154, italics omitted, disapproved on other

grounds in People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.) However, “[t]he

prosecution is given wide latitude during closing argument to vigorously argue its case

and to comment fairly on the evidence, including by drawing reasonable inferences from

it. [Citations.]” (People v. Lee (2011) 51 Cal.4th 620, 647.) A prosecutor is not

“required to discuss his view of the case in clinical or detached detail. [Citation.]”

(People v. Panah (2005) 35 Cal.4th 395, 463.) A prosecutor’s statements may even be

“hyperbolic and tendentious,” as long as they are reasonable inferences from the

evidence. (People v. Rowland (1992) 4 Cal.4th 238, 277.)

Defendant concedes that, “[g]iven the conflicting evidence in the record, whether

. . . Tatarzyn was an agent of the Sheriff’s Department was an open question.”

Nevertheless, he concludes that “it was misconduct for the prosecutor to mischaracterize

30
the evidence as though it conclusively established that she was not an agent.” Actually,

the correct conclusion is the exact opposite — because it was a reasonable inference that

Tatarzyn was not an agent, the prosecutor was free to assert flatly that she was not.

Where the evidence is in conflict, a prosecutor need not give a neutral and even-handed

summary. That is not what a closing argument is for.

In his reply brief, defendant contends for the first time that the challenged remark

constituted misconduct on the theory that the prosecutor expressed a personal belief in his

guilt.

Defendant forfeited this contention by failing to raise it in his opening brief.

(People v. Bryant, supra, 60 Cal.4th at p. 408.) In any event, it is wide of the mark. The

prosecutor argued that Tatarzyn was not an agent based on the evidence. He did not use

the words “I,” “me,” or “my”; he did not ask the jury to take his word for it. (See People

v. Edwards (2013) 57 Cal.4th 658, 742 [prosecutor’s statement that defendant was

“killer” was not expression of personal belief].) Thus, again, this argument did not

constitute prosecutorial error.

E. Arguing a Legally Inadequate Theory.

Defendant contends that the prosecutor committed misconduct by arguing a legally

inadequate theory — namely, that asking Tatarzyn to ask a hit man in Tijuana for a “two-

for-one deal” constituted solicitation. In part II, ante, we rejected defendant’s claim that

this was a legally inadequate theory. We reject this claim of prosecutorial error for the

same reasons.

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 F. Charging Defendant Under Penal Code Section 136.1 and Arguing That the

Jury Should Convict Him Under Penal Code Section 136.1.

As already discussed in part IV, ante, defendant contends that there was

insufficient evidence that he dissuaded a witness in violation of Penal Code section 136.1.

He concludes that the prosecutor committed misconduct by charging him under this

section and by arguing to the jury that he was guilty.

This is a somewhat novel type of prosecutorial misconduct claim. Defendant relies

on cases holding that it is misconduct to misstate the law in closing argument. (E.g.,

People v. Hill (1998) 17 Cal.4th 800, 830-831.) Defendant, however, does not point to

any particular misstatement of law. Rather, his real claim is that the prosecutor misstated

the result of applying the law to the facts. We would be reluctant to hold that this is

misconduct, because it would discourage prosecutors from arguing novel applications of

the law and would penalize them in hindsight for failing to predict future legal

interpretations.

Fortunately, we need not decide the question. In part IV, ante, we reversed

defendant’s conviction under Penal Code section 136.1 and held that this charge cannot

be retried. The asserted misconduct could not possibly have been prejudicial in any other

way. Accordingly, the asserted misconduct is moot.

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 VII

DISPOSITION

Defendant’s conviction for dissuading a witness (Count 4) is reversed. If the trial

court had realized that it could not sentence defendant on this count, it might have made

some of its other discretionary sentencing choices differently. (See generally People v.

Burbine (2003) 106 Cal.App.4th 1250, 1256-1259.) For example, it might have run

Count 2 consecutively rather than concurrently. Accordingly, the entire sentence is

reversed and the matter is remanded for resentencing.

CERTIFIED FOR PARTIAL PUBLICATION

RAMIREZ
P. J.

We concur:

MILLER
J.

CODRINGTON
J.

33