People v. Ramsey CA5

Filed 10/25/23 P. v. Ramsey 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F085291
Plaintiff and Respondent,
(Kern Super. Ct. No. MF013434A)
v.

HENRY LAVELL RAMSEY III, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, and
Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 On May 23, 2019, defendant Henry Lavell Ramsey III, attacked B.E., the mother
of his children. Defendant was arrested the same day. Approximately three days after
his arrest, defendant called B.E. and asked her to drop the charges.
On October 12, 2022, defendant was convicted by a jury of domestic violence and
dissuading a victim of a crime from causing a charging document from being filed. On
appeal, defendant contends that: (1) insufficient evidence supports his conviction for
dissuading a victim because a conviction pursuant to Penal Code section 136.1,
subdivision (b)(2)1 can only be based on prearrest conduct, and his call to B.E. in this
case occurred postarrest; and (2) the trial court’s instruction on dissuading a victim was
erroneous. The People disagree. We agree with defendant that there was instructional
error, and that this instructional error requires reversal. Defendant does not appeal his
conviction on the domestic violence charge or the enhancement, and this conviction
stands.
PROCEDURAL HISTORY
On September 29, 2022, the Kern County District Attorney filed an amended
information charging defendant with felony domestic violence (§ 273.5, subd. (a);
count 1) and dissuading a victim (§ 136.1, subd. (b)(2); count 2). As to count 1, the
information further alleged that defendant inflicted great bodily injury (§ 12022.7,
subd. (e)). As to both counts, the information alleged that defendant committed a crime
that involved great violence or great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)).
Defendant was found guilty by a jury on both counts on October 12, 2022. The
jury further found the great bodily injury enhancement true, and the trial court found true
the aggravating sentencing factor as to both counts (defendant and the People waived
their right to a jury trial on this issue).

1 All further undesignated statutory references are to the Penal Code unless
otherwise stated.

2.
 Defendant was sentenced on November 9, 2022. As to count 1, defendant was
sentenced to two years (the lower term), plus an additional three years for the section
12022.7 great bodily injury enhancement. As to count 2, defendant was sentenced to two
years, to be served consecutively to the sentence on count 1.
On November 10, 2022, defendant filed a notice of appeal.
FACTUAL SUMMARY
The Prosecution’s Case
Defendant is the father of two of B.E.’s children. In 2015, B.E. discovered that
defendant had a relationship with another woman and that woman was pregnant with
defendant’s child. However, defendant and B.E. continued to work on their relationship
between 2015 and 2019.
In January of 2019, defendant found out that B.E. was talking to other people. He
got very upset, and broke B.E.’s phone.
In May of 2019, B.E. began a romantic relationship with I.W. After B.E. began
this relationship, she told defendant that she did not want to be with him and was talking
to someone else. At this time, B.E. did not live with defendant.
On May 22, 2019, B.E. was at a friend’s house. Defendant came to the house and
told B.E. he wanted to talk to her. B.E. told defendant she did not want to talk to him.
Defendant got upset, slapped B.E.’s cheek, and walked away.
Later that night, B.E. went to I.W.’s apartment. Only I.W. and his brother were
there. After talking with I.W. and his brother, B.E. went to bed in I.W.’s room. She
woke up to pounding on the front door.
At about 5:00 or 6:00 a.m. on May 23, 2019, defendant came into I.W.’s room.
He grabbed B.E. by the straps on her shirt and threw her into a T.V. He then hit B.E. in
the face. The incident lasted five to 10 minutes.
After that, defendant left the room. I.W.’s brother told B.E. to leave, and she went
to the police station.

3.
 Officer Kelakios met with B.E. in the lobby of the California City Police
Department. He saw that B.E. had a blood-shot eye, as well as redness and swelling on
the left side of her face. B.E. told Kelakios about an incident that occurred earlier that
morning involving defendant. While B.E. was talking to Kelakois, she appeared
frightened, and her whole body was shaking. That same day, defendant was taken into
custody.
Later, B.E. went to the Antelope Valley Hospital emergency room. Jaratnam, a
physician’s assistant at the emergency room, saw B.E. B.E. presented with facial
injuries. Jaratnam ordered a CT scan of her face and brain. Dr. Tzung interpreted the CT
scan of B.E.’s facial bones, and he found fractures of the bone at the tip of her nose and a
minimally depressed fracture at the bottom of her left eye socket.
On May 26, 2019, defendant contacted B.E. by phone and asked her to drop the
charges, and she felt pressured to do so. The call was recorded, and it was played for the
jury. During the call, defendant asked B.E. if she was going to court on Tuesday to drop
the charges and talk to the judge. When B.E. asked defendant why she has to talk to the
judge, defendant told her it was to let the judge know that she was dropping the charges.
He also told her to go to the office in the courthouse to drop the charges, which is how
she dropped the charges “last time.” At the time of the call, B.E. still had physical
injuries.
Defendant’s Case
Defendant and B.E. began their relationship in 2002. During the course of the
relationship, defendant and B.E. had two children together. They stopped living together
in 2016. Even after defendant and B.E. separated, they still “got back together and
reconsolidated [their] relationship.”
On May 21, 2019, defendant told B.E. that his girlfriend was five months
pregnant. B.E. was upset. She gave the children to defendant and told defendant that she
did not want them anymore. Later that same day, defendant saw B.E. again at a friend’s

4.
house. They spoke, and B.E. again told defendant that she did not want the children.
Defendant and the children went home. Defendant did not hit B.E.
Defendant did not go to I.W.’s house and hit B.E. Defendant was not aware that
B.E. was seeing I.W. until she came to his house and told him on the date of the incident.
Defendant did not know I.W.
In 2007, during a domestic argument with defendant, B.E. hit herself in the face,
legs, and chest with an orange that was inside of a sock. Similar incidents occurred
throughout their relationship. In 2015, B.E. cut her wrists after a domestic argument.
She also jumped out of a moving car.
Defendant called B.E. from jail and asked her to drop the charges. He did so
because he did not do what she accused him of, because he had to pay rent, and because
he had custody of his kids.
DISCUSSION
Defendant argues that the trial court erred in instructing the jury regarding the
section 136.1, subdivision (b)(2) charge. We agree. Based on the errors in the
instructions, the jury likely found defendant guilty without finding that he tried and
intended to prevent a charging document from being filed. Accordingly, defendant’s
section 136.1, subdivision (b)(2) conviction must be reversed.
I. Standard of Review
“We review de novo whether jury instructions state the law correctly.” (People v.
Jackson (2010) 190 Cal.App.4th 918, 923.) “ ‘When an appellate court addresses a claim
of jury misinstruction, it must assess the instructions as a whole, viewing the challenged
instruction in context with other instructions, in order to determine if there was a
reasonable likelihood the jury applied the challenged instruction in an impermissible
manner.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 677.) “ ‘[W]e presume the jury
understood and followed the court’s instructions.’ ” (People v. Erskine (2019) 7 Cal.5th
279, 303.) If possible, we interpret the instructions “so as to support the judgment rather

5.
than defeat it if they are reasonably susceptible to such interpretation.” (People v.
Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
Depending upon the basis of the claimed errors, we review instructional errors and
for harmless error under either Chapman v. California (1967) 386 U.S. 18, 24 or People
v. Watson (1956) 46 Cal.2d 818, 836. Under the more stringent Chapman standard,
which applies to errors of constitutional dimension, reversal is required unless the
reviewing court can conclude beyond a reasonable doubt that the error did not contribute
to the verdict. (Chapman, at p. 24.) Under the alternative Watson standard, which
applies to errors of state law, reversal is not required unless it is reasonably probable the
defendant would have obtained a more favorable result had the error not occurred.
(Watson, at p. 836.)
As discussed in more detail below, the instructional errors involved elements of
the offense, and because of the instructional errors, the jury could find defendant guilty
without finding all the necessary elements of the offense. Accordingly, the Chapman
standard applies here. (People v. Hendrix (2022) 13 Cal.5th 933, 942 [“Among the
constitutional errors subject to Chapman review is misinstruction of the jury on one or
more elements of the offense”]; People v. Chun (2009) 45 Cal.4th 1172, 1201
[“Instructional error regarding the elements of the offense requires reversal of the
judgment unless the reviewing court concludes beyond a reasonable doubt that the error
did not contribute to the verdict”].) Under the Chapman standard, “a reviewing court
may hold the error harmless where it would be impossible, based on the evidence, for a
jury to make the findings reflected in its verdict without also making the findings that
would support a valid theory of liability.” (In re Lopez (2023) 14 Cal.5th 562, 568.)
II. Analysis
Defendant admits that defense counsel did not object to the instructions at the trial
court. However, defendant argues that we may review the instructions despite this failure
because his substantial rights were affected, and he was prejudiced by the errors.

6.
 As relevant here, the trial court instructed the jury as follows:

“The defendant is charged in Count 2 with intimidating a witness in
violation of … section 136.1.

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

“1A. The defendant tried to prevent or discourage [B.E.]
from making a report that she was a victim of a crime to inflicting
injury on a follow parent resulting in a traumatic condition;

“OR

“1B. The defendant tried to prevent or discourage [B.E.]
from cooperating or providing information so that a complaint could
be sought and prosecuted, and from helping to prosecute that action;

“2. [B.E.] was a crime victim;

“AND

“3. The defendant knew he was preventing or
discouraging [B.E.] from testifying and intended to do so.”
Defendant argues that in paragraph 1A of this instruction, the jury was instructed
as to an element of 136.1, subdivision (b)(1), dissuading a victim from making a report.
In paragraph 3, the jury was instructed as to an element of 136.1, subdivision (a),
dissuading a witness from giving testimony. However, defendant could not be convicted
under subdivision (b)(1) or subdivision (a) because he was not charged with these
offenses.
A. The Claim Has Not Been Forfeited
Under section 1259, we may review any jury instruction given – even though no
objection was made below –“if the substantial rights of the defendant were affected
thereby.” (§ 1259.) Given the errors in the instructions regarding the elements of section
136.1, subdivision (b)(2), which are described in more detail below, this claim is
cognizable on appeal. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503 [“A party

7.
may not argue on appeal that an instruction correct in law was too general or incomplete,
and thus needed clarification, without first requesting such clarification at trial ….
[However,] [i]nstructions regarding the elements of the crime affect the substantial rights
of the defendant, thus requiring no objection for appellate review”]; (People v. Smithey
(1999) 20 Cal.4th 936, 976, fn. 7 [a claim that an instruction misstated the law or violated
the due process clause “is not of the type that must be preserved by objection”].)
We also find that defendant’s claim of error has not been forfeited under People v.
Toro (1989) 47 Cal.3d 966 (disapproved on other grounds in People v. Guiuan (1998)
18 Cal.4th 558, 568, fn. 3). In Toro, the court held that a new offense can be added at
trial via verdict forms and jury instructions. (Toro, at p. 976.) A failure to object to the
new offense is regarded as consent to the new offense being added. (Ibid.) However,
here, the jury instructions only referred to section 136.1, subdivision (b), and the verdict
form only referred to section 136.1, subdivision (b)(2). There is no indication that a
section 136.1, subdivision (b)(1) charge or a section 136.1, subdivision (a) charge were
being added. Accordingly, the failure to object did not constitute consent to new offenses
being added, and defendant did not forfeit his claim of error.2
B. The Instructional Errors Require Reversal
Applying the Chapman standard, defendant’s section 136.1, subdivision (b)(2)
conviction must be reversed.
“Section 136.1 basically prohibits four forms of witness intimidation. In
subdivision (a), it forbids knowingly and maliciously preventing or dissuading a witness
or victim from attending or testifying at trial. Subdivision (b) prohibits preventing or
dissuading a witness or victim from (1) reporting the victimization; (2) causing a

2 We note that even if a new offense under section 136.1(a) was added at trial (and
it was not), there would still be reversable instructional error because offenses under
section 136.1, subdivision (a) require the defendant to have acted “maliciously,” and the
jury instructions did not include – and the jury did not necessarily find true – this element
of the offense.

8.
complaint or similar charge to be sought; and (3) arresting or causing or seeking the
arrest of any person in connection with such victimization. All of these crimes are made
a felony where the act is accompanied by force or an express or implied threat of violence
upon a witness, victim, or the property of any witness, victim, or third person.” (People
v. Hallock (1989) 208 Cal.App.3d 595, 606 (Hallock)). Section 136.1, subdivision (b)(2)
specifically prohibits attempting to prevent or dissuade any victim of a crime from
“[c]ausing a complaint, indictment, information, probation or parole violation to be
sought and prosecuted, and assisting in the prosecution thereof.” (§ 136.1, subd. (b)(2).)
As applied to the facts of this case, the applicable California Criminal Jury
Instruction provides:

“1. The defendant [tried to prevent or discourage] [B.E.] from
cooperating or providing information so that a [complaint] could be sought
and prosecuted, and from helping to prosecute that action;

“2. [B.E.] was a [crime victim];

“AND

“3. The defendant knew [he] was [trying to prevent or discourage
B.E. from cooperating or providing information so that a complaint could
be sought and prosecuted, and from helping to prosecute that action] and
intended to do so.” (CALCRIM No. 2622.)
However, this instruction was not given. Instead, the instruction given in
paragraph 1A regarding preventing or discouraging B.E. from making a report was taken
from section 136.1, subdivision (b)(1), a crime with which defendant was not charged.
Additionally, the instruction given in paragraph 3 regarding preventing or discouraging
B.E. from testifying was taken from section 136.1, subdivision (a), another crime with
which defendant was not charged. Given these errors, which are described in more detail
below, the jury likely found defendant guilty of violating section 136.1,
subdivision (b)(2) without finding that he tried and intended to prevent a charging
document from being filed, key elements of the offense with which he was charged.

9.
 The People argue that any error was harmless. According to the People, there was
either no error at all, or only technical error that does not warrant a reversal. However,
the People’s arguments of harmless error are not persuasive.
As to the instruction in paragraph 1A, for purposes of this appeal, the People
appear to concede, under applicable case law, defendant could not have been found guilty
pursuant to this instruction as a matter of law because his conduct occurred after B.E.
filed the report.3 Given this, as well as the fact that the jury was instructed that some of
the instructions may not apply, the People argue that the jury would have disregarded
paragraph 1A.
The flaw in this argument is that the jury was not instructed that, as a matter of
law, defendant could not be found guilty pursuant to paragraph 1A if his conduct
occurred after the report was filed. (See People v. Aledamat (2019) 8 Cal.5th 1, 7
[“ ‘[J]urors are “well equipped” to sort factually valid from invalid theories, but ill
equipped to sort legally valid from invalid theories’ ”].) Moreover, the prosecutor did not
concede this point at the trial court, and in fact argued to the jury that defendant could be
convicted if he tried to prevent or discourage B.E. from making a report even though the
evidence showed that defendant called B.E. after B.E. filed the report and defendant had
been arrested. Specifically, during her closing argument, the prosecutor argued that
“there’s multiple options under which the defendant can be found guilty. We have that
he tried to prevent or discourage [B.E.] from making a report that she was a victim of a
crime or that he tried to prevent or discourage [B.E.] from cooperating or providing
information.” Additionally, in response to defendant’s closing argument that the jury
instruction in paragraph 1A did not apply, the prosecutor stated: “Now, I would also like

3 This concession is in accordance with People v. Fernandez (2003)
106 Cal.App.4th 943 (Fernandez), which held that section 136.1, subdivision (b)(1)
“punishes a defendant’s pre-arrest efforts to prevent a crime from being reported to the
authorities.” (Fernandez, at p. 950.)

10.
to address briefly the argument made about the … [s]ection 136[, subdivision] (b)(1).
The investigation clearly wasn’t complete when [defendant] made that phone call. We
know that because the victim was subsequently interviewed. The defense did their own
investigation. And so we know at that point, even though the complaint had been filed,
that the investigation was not done, and he was trying to dissuade her from further
cooperating with law enforcement.” Thus, the prosecutor repeatedly told the jury that
defendant could be convicted based on the erroneous instruction in paragraph 1A.
Finally, in light of the erroneous instruction and the prosecutor’s argument as to
the paragraph 1A instruction, there was evidence from which the jury could have
concluded that defendant tried to dissuade B.E. from making a report to a judge pursuant
to this instruction. On the call to B.E. that defendant made after he was arrested,
defendant asked B.E. if she was going to court on Tuesday to drop the charges and talk to
the judge. When B.E. asked why she had to talk to the judge, defendant told her it was to
let the judge know that she was dropping the charges. The jury was not instructed on the
definition of a “report.” Thus, the jury could have reasonably concluded that defendant
was attempting to prevent B.E. from making a report.
Moreover, as to the 1B theory, no evidence was presented to the jury regarding
when the first charging document was filed. Thus, there was no evidence that a charging
document had not been filed at the time defendant made the phone call to B.E. Further,
during closing arguments both parties argued that a charging document had been filed at
the time defendant made the call. While the parties’ assertions on that point were
erroneous – the complaint was not filed until May 28, 2019 – there is little reason to
believe that the jury found defendant guilty of trying to prevent a charging document
from being filed because the date the charging document was filed was not before the
jury and the parties agreed that it had already been filed when defendant made the call. 4

4 In addressing defendant’s argument that there was insufficient evidence to
support his section 136.1, subdivision (b)(2) conviction, the People argue that a jury

11.
 Given the errors in paragraphs 1A and 1B of the jury instructions and the evidence
in this case, we are unable to determine whether the jury found defendant guilty pursuant
to the instruction in paragraph 1B (which was related to the crime with which he was
charged) or paragraph 1A (which was erroneous because defendant was not charged with
that offense, and that offense was impossible for defendant to have committed because
B.E. had already reported the crime to law enforcement). Therefore, we cannot conclude
beyond a reasonable doubt that the error did not contribute to the verdict. Standing alone,
this is a sufficient basis to reverse the conviction on count 2.
The People also argue that the inclusion of the word “testifying” in paragraph 3 of
instruction is harmless error because it actually made it more difficult for the People to
prove their case. According to the People, pursuant to this instruction the jury had to find
that defendant attempted to dissuade B.E. not just from cooperating or providing
information, but that he did so by attempting to dissuade her from testifying.
However, the People are incorrect. The instruction in paragraph 3 stated that to
find defendant guilty, the jury only needed to find that “defendant knew he was
preventing or discouraging [B.E.] from testifying and intended to do so.” The instruction
did not reference paragraph 1B or state that the jury could only find defendant guilty if he
intended to prevent or discourage B.E. from causing a charging document to be filed and
assisting in the prosecution. Additionally, the instruction in paragraph 3 is the instruction
for dissuading a witness from testifying in violation of 136.1, subdivision (a),
(CALCRIM No. 2622), a crime with which defendant was not charged.

could have inferred from the evidence that a complaint had not been filed at the time
defendant made the call to B.E. This argument is not persuasive. No evidence was
presented to the jury regarding when the charging document was filed, and the People do
not explain why or how a jury would know the general timeline for the filing of charging
documents. Moreover, even if the jury could have inferred that a charging document had
not yet been filed, under the Chapman standard of review, this is insufficient to find
harmless error.

12.
 The distinction is important because, under the statutory scheme at issue, part I,
title 7, chapter 6 of the Penal Code, sections 132 through 140, (1) dissuading a victim
from testifying and (2) dissuading a victim from causing a charging document to be filed
and assisting in the prosecution are different offenses with different elements.5 “Efforts
to prevent or influence testimony are specifically prohibited by provisions other than
section 136.1, subdivision (b)(1). Section 137 forbids a defendant’s efforts to change the
content of a witness’s testimony. (People v. Womack [(1995)] 40 Cal.App.4th [926,]
930–931.) Section 136.1, subdivision (a) makes it a crime to ‘[k]nowingly and
maliciously prevent[] or dissuade[] any witness or victim from attending or giving
testimony at any trial, proceeding, or inquiry authorized by law’ or to attempt to do the
same; i.e., to try to prevent a witness from appearing in court and giving testimony.
(§ 136.1, subd. (a)(1) & (2); Womack, at p. 931.) Section 138, subdivision (a) penalizes
bribes that are intended to dissuade a witness from appearing in court.” (Fernandez,
supra, 106 Cal.App.4th at pp. 948–949). “The distinction between the offenses is not
merely a semantic one. The Legislature has taken pains to distinguish the various
methods of influencing a witness and to establish a range of punishment for those
offenses that reflects different levels of culpability.” (Id. at p. 950.) Like section 136.1,

5 We review issues of statutory construction de novo. (People v. Gonzales (2018)
6 Cal.5th 44, 49.) Our goal is to determine the legislative intent of the statute. (People v.
Johnson (2022) 79 Cal.App.5th 1093, 1108.) “Because the statutory language is
generally the most reliable indicator of that intent, we look first at the words themselves,
giving them their usual and ordinary meaning.” (Alford v. Superior Court (2003)
29 Cal.4th 1033, 1040, overruled on other grounds in Facebook, Inc. v. Superior Court
(Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.) When the statutory language is
unambiguous, its plain meaning controls. (Lungren v. Deukmejian (1988) 45 Cal.3d 727,
735.) We also “generally must ‘accord[] significance, if possible, to every word, phrase
and sentence in pursuance of the legislative purpose,’ and [the California Supreme Court]
ha[s] warned that ‘[a] construction making some words surplusage is to be avoided.’ ”
(People v. Valencia (2017) 3 Cal.5th 347, 357.) Where the language supports more than
one reasonable construction, we may look to extrinsic aids, including the legislative
history, for additional guidance. (People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.)

13.
subdivision (b)(1), subdivision (b)(2) does not target efforts to influence or prevent
testimony at a proceeding or inquiry authorized by law. Rather, subdivision (b)(2) targets
attempts to deter a victim from causing a charging document to be filed and from
assisting in the prosecution.
The conclusion that section 136.1, subdivision (b)(2) targets attempts to deter a
victim from causing a charging document to be filed and from assisting in the
prosecution is inconsistent with People v. Velazquez (2011) 201 Cal.App.4th 219
(Velazquez). The Velazquez court held that “[s]ubdivision (b)(2) clearly encompasses
more than prearrest efforts to dissuade, inasmuch as it includes attempts to dissuade a
victim from causing a complaint or information to be prosecuted or assisting in that
prosecution.” (Id. at p. 233, italics added.) Thus, according to the Velazquez court,
subdivision (b)(2) can be violated by either (1) attempting to prevent or dissuade a victim
from causing a charging document to be filed or (2) from assisting in the prosecution.
However, we agree with the analysis in Fernandez discussed above, as well as the
analysis in People v. Reynoza (2022) 75 Cal.App.5th 181, review granted May 11, 2022,
S273797 (Reynoza). As the court in Reynoza explained, “[t]he plain meaning of the
words ‘[c]ausing a complaint … to be sought and prosecuted’ necessarily includes the
filing of a complaint. The Velazquez court misconstrued the term ‘and’ to mean ‘or’,
thereby eliminating that required filing element. By passing over the drafters’ use of the
conjunctive rather than the disjunctive, the court ignored the canon of statutory
construction that ‘ “significance must be given to every word [in a statute] in pursuing the
legislative purpose, and the court should avoid a construction that makes some words
surplusage.” ’ ” (Id. at p. 188.)
Based on the foregoing, the instructional error in paragraph 3 did not make it more
difficult for the People to prove their case. Instead, it added an additional, and erroneous,
route for the jury to find defendant guilty. The jury may have found that defendant tried
and intended to prevent or discourage B.E. from testifying, and not that he tried and

14.
intended to prevent her from causing a charging document to be filed. Even if the jury
found defendant guilty under the instruction in paragraph 1B – which we found above to
be unlikely because no evidence of when a charging document was filed was presented to
the jury and the parties agreed in argument that the complaint had already been filed at
the time of the call—the jury was permitted to find defendant guilty without finding true
an essential element of the offense – that defendant intended to prevent or discourage
B.E. from causing a complaint to be filed. Therefore, we cannot conclude beyond a
reasonable doubt that the error in paragraph 3 of instruction 1B did not contribute to the
verdict. Standing alone, this is also a sufficient basis to reverse the conviction on
count 2.
Overall, given the evidence in this case and the instructional errors regarding the
elements of section 136.1, subdivision (b)(2), the jury likely have found defendant guilty
without finding that defendant tried and intended to prevent a charging document from
being filed, required elements of the offense.6 Accordingly, we cannot conclude beyond
a reasonable doubt that the errors were harmless, and reversal is required.
C. The Court Does Not Address Defendant’s Alternative Argument
Defendant also argues that there was insufficient evidence to support his
section 136.1, subdivision (b)(2) conviction because this section only prohibits prearrest
conduct. While phrased as a sufficiency of the evidence argument, the question is largely
a legal one.
There is a split of authority regarding whether section 136.1, subdivision (b)(2)
can be violated by conduct that occurs after a charging document has been filed (see
Reynoza, supra, 75 Cal.App.5th at p. 188; People v. Brown (2016) 6 Cal.App.5th 1074,
1082; Velazquez, supra, 201 Cal.App.4th at pp. 232–233), and the Supreme Court

6 We note that the verdict form did not clarify the issue for the jury. While it
refers to dissuading a witness or victim from “[p]rosecution,” it does not mention any of
the charging documents listed in section 136.1, subdivision (b)(2).

15.
granted review in Reynoza to answer this question. While we agree with Reynoza that the
“and” in subdivision (b)(2) means “and,” based on the record in this case and the
arguments presented by the parties, defendant’s conduct occurred soon after he was
arrested and before a charging document was filed. Given this, that the instructional
errors require reversal, and that our Supreme Court may provide additional guidance on
the issue, we take no other position on whether subdivision (b)(2) can be violated by
conduct that occurs after a charging document has been filed.
DISPOSITION
Defendant does not appeal his conviction on the domestic violence charge or the
enhancement, and this conviction stands. Defendant’s section 136.1, subdivision (b)(2)
conviction is reversed, and defendant’s sentence is vacated. As the reversal is predicated
on instructional error and not on insufficiency of evidence, the People may choose to
retry defendant on the subdivision (b)(2) charge. (People v. Hernandez (2003) 30 Cal.4th
1, 10 [“[T]he law is clear that, as a general rule, errors other than insufficiency of
evidence do not preclude retrial following reversal of conviction”].) The case is
remanded to the trial court for proceedings consistent with this opinion.

POOCHIGIAN, Acting P. J.

WE CONCUR:

DETJEN, J.

SNAUFFER, J.

16.