By Ray Hill
Professor emeritus, Santa Rosa Junior College

Ruling

Defendant’s Act of Turning Off a Victim’s Cell Phone and Denying Her Access Supports a Conviction for Preventing or Dissuading a Victim from Reporting a Crime (136.1(b)(1) P.C.) (Peo. v. Sherman (2022) 2022 WL 17726696; 2022 Cal App. Lexis 1022).

Case Background

Victim was visiting the United States from Mexico for the first time. Defendant posed as an Uber driver and picked up the victim. (He had previously worked for Uber and Lyft and the company decals were still on his car windows.) He drove victim to a remote location, parked and lunged into the back seat, held the victim down, pulled down her pants and underwear, and attempted to rape her. Defendant’s DNA was found on the victim’s underwear. During the attack, the victim was able to gain possession of her cell phone. Defendant grabbed the phone, turned it off, said “I’m not going to let you have it” and put it aside. When the victim told the defendant she was pregnant, he returned to the front seat, drove to another location, stopped the car and dropped the victim off.

Defendant was convicted of kidnapping, assault with force likely to produce great bodily injury and dissuading the victim from reporting the crime. He was sentenced to 11 years in CDC&R. Defendant argued on appeal that the statutory interpretation of 136.1(b) (1) P.C. applies only to crimes that have already occurred, not to crimes in progress.

Appellate Court Decision

The First District Court of Appeals ruled that 136.1(b)(1) applies to attempts to prevent a victim/witness from seeking assistance during an ongoing crime, not just attempts to dissuade a report of a past crime. The statute should be broadly interpreted to apply to preventing communication for assistance during an ongoing course of criminal conduct, the ruling states.

Discussion

This decision can particularly apply in domestic violence cases where a primary aggressor denies phone access or damages a phone to prevent a victim from calling the police.

Cases supporting a conviction for 136(b)(1) P.C. in domestic violence incidents include: Forcibly taken a phone from a victim and hanging it up (Peo. v. McElroy (2005) 126 Cal. App. 4th 874); When victim tried reporting, defendant ripped the phone from the wall, threw it on the floor and broke the phone (Peo. v. Lock (2021) 59 Cal. App. 5th 586); Defendant “head butted” the victim, grabbed the cordless phone she was holding, removed the battery and put the phone in a closet (Peo. v. Navarro (2013) 212 Cal. App. 4th 1336).

Related Statutes

591 P.C. – Damaging a Phone Line or Equipment (felony wobbler).

This statute covers maliciously disconnecting, removing or injuring any telephone line, mechanical equipment or appurtenances, or apparatus connected thereto. The legal argument here is damaging or denying access to a wireless device constitutes preventing the communication link necessary to call for assistance. “Mechanical equipment” includes a telephone (2022 Cal. Crim. Jury Instructions No. 2902; Peo. v. Tafoya (2001) 92 Cal. App. 4th 270); Peo. v. Kreiling (1968) 259 Cal. App. 2nd 698).  This act speaks to “fair probability” for making an arrest (836(a)(2) P.C. – Probable Cause to Believe a Felony Was Committed Outside Your Presence). “Prevention of help” is not a necessary element in the corpus delicti of 591 P.C.

591.5 P.C. – Maliciously Damaging or Obstructing a Communication Device to Prevent Someone from Using It to Call for Help (misdemeanor). A lesser and included offense of 591 P.C.

         The advantage of 591 P.C. over 591.5 P.C. is the potential of a felony arrest for the offense that occurred outside your presence. Even if the charged is later plea bargained to a misdemeanor, upon conviction, mandatory sentencing provisions come into play. Amongst these conditions, the defendant serves a three-year term of probation, will be subject to a “no contact with victim” order and must attend a 52-week domestic violence batterer’s program.

 594(b)(3) P.C. – Vandalism.

Damaging property includes another’s property or interest in “community property” (Peo. v. Kahanic (1987) 196 Cal. App. 3rd 462). In Kahanic, an angry wife saw their jointly owned Mercedes Benz driven by her husband parked in front of another woman’s house. She threw a beer bottle through the windshield. On appeal, defendant argued “community property” is not “property of another” as defined by the vandalism statute. The Fifth District Court of Appeal ruled the crime was a malicious act against the husband’s property interest in the vehicle. A crime occurred regardless of which spouse physically possesses the vehicle at the time the act occurred.

         If a phone is damaged, you may be able to make a probable cause felony arrest for vandalism exceeding $400 in value based on 594(b)(1) P.C.  (836(a)(3) P.C. – Probable Cause to Believe a Felony Has Been Committed Whether the Felony Was in Fact Committed. An Internet search show the costs of an iPhone 14 Pro ranges from $1,099 to $1,698. You can include in value the sales tax (Peo. v. Seals (2017) 14 Cal. App. 5th 1210) and any purchased cover on the phone. Even with depreciation, the phone’s value could exceed the $400 threshold. Less than $400, a misdemeanor. Just be reasonable here. The Opinion Evidence Rule (800 E.C.) allows you to form an opinion on value to establish the “fair probability” for a probable cause felony arrest. You will then need to have a phone dealer give you a more complete fair market value estimate based upon age and model of the phone to submit to the District Attorney’s Office for complaint-filing purposes.

Stay safe!

RH