People v. Joseph ( 2019 )

Filed 3/5/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B285062
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No.
MA069423)
v.
MICHAEL JOSEPH,
Defendant and
Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Charles A. Chung, Judge. Affirmed in part,
reversed in part.
Joshua Schraer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Analee J. Brodie,
Deputy Attorney General, for Plaintiff and Respondent.
_______________________
The jury found defendant and appellant Michael
Joseph guilty of two counts of second degree robbery (Pen.
Code, §211 [counts 1 & 2])1 and one count of perjury by
declaration (§ 118, subd. (a) [count 3]).2
Joseph was sentenced to seven years in state prison,
consisting of the upper term of five years in count 1, plus one
year each in counts 2 and 3 (one third of the middle term).
Joseph contends that there is insufficient evidence to
support his robbery conviction because the prosecution failed
to demonstrate the robbery was accomplished using force.
In the opening brief, Joseph also contended he was
incorrectly charged with perjury under section 118,
subdivision (a), a felony, when he should have been charged
with falsely reporting a crime to police under section 148.5,
subdivision (a), a misdemeanor. Following our review of the
record, we requested that the parties file supplemental
briefing to address: (1) whether Vehicle Code section 10501,
subdivision (a) preempts section 148.5, subdivision (a), or
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Co-defendant Tyree McFarland was also charged in
counts 1 and 2, but pleaded no contest and is not a party to
this appeal.
2
section 118, subdivision (a); and (2) the impact of the recent
Court of Appeal decision in People v. Sun (2018) 29
Cal.App.5th 946 (Sun) on Joseph’s preemption contention.
Joseph now contends that Vehicle Code section 10501,
subdivision (a) preempts section 118, subdivision (a). The
Attorney General maintains the argument that it does not.
We affirm the judgment with respect to the counts of
second degree robbery (§211 [counts 1 & 2]), but reverse the
perjury conviction (§ 118, subd. (a) [count 3]).
FACTS3
On the evening of August 28, 2016, at approximately
11:00 p.m., Rebecca Fox was sitting in her car, with her
Husband Salim Halabi in the passenger seat next to her, on
Lancaster Boulevard, waiting for their friend Suzann Reina.
Fox had her window slightly down. A young man who
appeared to be about 13 years old approached Fox and asked
if he could use her cell phone to call his grandmother. A
second young man was with the youth, but he hung back and
did not approach the car. Fox was wary of the young man
and initially said no, but then she offered to make the call on
speaker phone and hold the phone out for him to speak with
his grandmother. The young man gave her a number to call.
Reina arrived and observed a young man talking to Fox
and another young man standing behind him. She was
3 The facts are as presented by the prosecution. Joseph
did not present evidence in his defense.
3
suspicious of the young man speaking to Fox, so she yelled to
Fox to put her phone away and roll up her window. As this
was occurring, Reina noticed a Chrysler 300 in the area
driving slowly with its lights off. She could not see the
driver.
Fox held her phone in her right hand, while the young
man remained outside her car on the left side, dialed the
number he had given her, and put the call on speaker so he
could hear. A young girl, who did not sound like a
grandmother, answered the phone call. The young man
stuck his head inside Fox’s car and tried to take the phone
off the speaker. “That wasn’t okay” with Fox, so she “held on
to [her] phone tighter and moved away from him.” Then the
young man “reached in with his hands and grabbed [Fox’s]
phone out of [her] hands.” “It was a struggle but he did [take
the phone from her].” The young man ran away with her cell
phone. Halabi got out of the car and chased him. Reina saw
the second young man get into the Chrysler as the first
young man ran away.
Richard Cardenas was driving with his cousin and his
friend when Halabi and the young man ran in front of his
car. As he passed Cardenas, Halabi yelled that the young
man had his phone. Cardenas indicated to Reina that he
understood what was happening and followed the Chrysler.
Reina also pursued the Chrysler.
Cardenas turned a corner and saw the youth and
Halabi on the ground. Two people got out of the Chrysler,
which was parked about 10 or 12 feet away. One of them
4
kicked Halabi in the stomach. Cardenas and his friends got
out of their car to help Halabi. The young men fighting
Halabi got back in the Chrysler and drove away.
Reina reached Halabi just after Cardenas did. She also
saw the Chrysler parked nearby. The doors were open and
the only person in the car was the driver. The three
passengers were beating Halabi. They were all male and
looked like they were less than 25 years old. She heard the
driver, who “definitely” had “an adult voice” say, “Get in the
car, get in the car.” The young men got back in the car and
he drove them away.
Reina attempted to follow the Chrysler to get its
license plate number. The Chrysler was driving fast, but she
managed to get part of the number—7TT. She returned to
Fox and Halabi. Halabi’s glasses were missing and his face
was covered in blood, but he had gotten Fox’s cell phone
back.
Cardenas also followed the Chrysler in an attempt to
get its license plate number. He followed it for several
blocks and went around a park. He never saw the vehicle
stop and did not see the driver attempting to leave the
vehicle. He lost the Chrysler when it drove through a red
light.
Deputy Sheriff Kurt Wurzer responded to the scene.
As he was interviewing Fox, Halabi, and Cardenas, the
deputy received a report that a stolen light green Chrysler
300 registered to Joseph had been found nearby with a key
5
in the ignition. The Chrysler was found close to the robbery
scene.
Deputy Wurzer spoke with Joseph at his residence a
few hours after the robbery. Joseph said his car was stolen
during the day when he was at the Antelope Valley Fair.
Deputy Wurzer asked Joseph why he waited approximately
three hours to report the car stolen. Joseph said he was
waiting for a ride back to his house, and had lost his wallet
and keys. Deputy Wurzer completed a CHP-180 form
reporting the theft of the vehicle. The deputy testified that
“CHP-180 is a standardized form all law enforcement in
California use for either a stolen vehicle or if we have to tow
a vehicle or we recover a vehicle . . . .” The form states on its
face that it is “FURNISHED TO ALL PEACE OFFICERS
BY CALIFORNIA HIGHWAY PATROL.” The deputy
confirmed that “CHP-180 [is] a document that the registered
owner has to sign. Joseph signed below the section of the
form that stated, “I certify or declare under penalty of
perjury under the laws of the State of California that the
foregoing is true and correct.”
Detective Daniel Ament of the Lancaster Sheriff’s
Department’s Robbery Suppression team investigated the
robberies.
Officers recovered Taco Bell receipts, showing two
drive-through purchases made between 10:00 and 11:00 p.m.
on the night of the robberies, from the center console of
Joseph’s Chrysler.
6
Surveillance video showed Joseph driving through the
Taco Bell drive-through at 10:11 p.m. alone in his Chrysler.
Joseph bought a burrito and sat in his car for several
minutes. Video depicted Joseph getting out of his car and
talking to several young men. The young men got into
Joseph’s car. Joseph went through the drive-through a
second time at 10:48 p.m. and purchased six burritos.
Other surveillance footage showed Joseph’s Chrysler
parked in a nearby lot with the passenger door open, as
Halabi was being beaten by the young men.
The location where the assault took place and the area
where Joseph’s car was recovered were each approximately
500 feet from Joseph’s residence.
Detective Ament interviewed Joseph on August 30,
2016. Joseph initially said he got drunk at the fair and then
could not find his car when he went back to the parking lot
around 9:00 p.m.
When he was told about the surveillance video, Joseph
said he first came in contact with the four young men at
Taco Bell. They took his phone, wallet, and keys. One of
them pulled a knife on him and forced him to drive them
around. They told him to pull over. The one with the knife
stayed in the car while the others got out. Joseph did not
know the young men were going to commit robbery. He did
not see where the two of them went when they got out of the
car. They got back in the car and forced him to drive away.
They made him pick up the men running outside the car. He
did not know what they had done until they told him his car
7
was used in a robbery. After the robbery, they made him
drive around the corner. The one with the knife told him to
“get the fuck out of the car.” He went straight home and
never saw them again.
Joseph denied robbing anyone. He explained that he
told the police his car was stolen because he was scared and
embarrassed. He did not want any trouble with the young
men.
DISCUSSION
Evidence of Force
Joseph argues that there is insufficient evidence to
support his robbery conviction in count 1 because the
prosecution failed to demonstrate he used force greater than
the force required to take Fox’s cell phone from her. We
conclude that substantial evidence supports the jury’s
finding that the cell phone was taken by means of force or
fear.
In determining whether sufficient evidence supports a
conviction, “we review the whole record to determine
whether any rational trier of fact could have found the
essential elements of the crime or special circumstances
beyond a reasonable doubt. [Citation.] The record must
disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant
8
guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable
to the prosecution and presume in support of the judgment
the existence of every fact the jury could reasonably have
deduced from the evidence. [Citation.] . . . ‘We resolve
neither credibility issues nor evidentiary conflicts; we look
for substantial evidence. [Citation.]’ [Citation.] A reversal
for insufficient evidence ‘is unwarranted unless it appears
“that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict.
[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The “testimony of a single witness is sufficient to support a
conviction” unless it is “physically impossible or inherently
improbable.” (People v. Young (2005) 34 Cal.4th 1149, 1181;
see Evid. Code, § 411 [“Except where additional evidence is
required by statute, the direct evidence of one witness who is
entitled to full credit is sufficient for proof of any fact”].)
Section 211 defines robbery as “the felonious taking of
personal property in the possession of another, from his [or
her] person or immediate presence, and against his [or her]
will, accomplished by means of force or fear.” “‘“The terms
‘force’ and ‘fear’ as used in the definition of the crime of
robbery have no technical meaning peculiar to the law and
must be presumed to be within the understanding of jurors.”’
(People v. Mungia (1991) 234 Cal.App.3d 1703, 1708, quoting
People v. Anderson (1966) 64 Cal.2d 633, 640.) In terms of
the amount of force required to elevate a taking to a robbery,
‘something more is required than just that quantum of force
9
which is necessary to accomplish the mere seizing of the
property.’ (People v. Morales (1975) 49 Cal.App.3d 134, 139
(Morales).) But the force need not be great: ‘“‘[a]ll the force
that is required to make the offense a robbery is such force
as is actually sufficient to overcome the victim’s resistance
. . . .’”’ (People v. Burns (2009) 172 Cal.App.4th 1251, 1259
(Burns), quoting People v. Clayton (1928) 89 Cal.App. 405,
411.)” (People v. Lopez (2017) 8 Cal.App.5th 1230, 1235
(Lopez).) “[W]here a person wrests away personal property
from another person, who resists the effort to do so, the
crime is robbery, not merely theft.” (Burns, supra, at
p. 1257; see also Lopez, supra, 8 Cal.App.5th at p. 1235.)
In this case, Fox testified that she was holding the
phone in her right hand, away from where the young man
was, outside the car on her left side. When the young man
initially put his head in the car and tried to take the phone
off speaker, Fox “held [her] phone tighter and moved away
from him.” He reached “in with his hands” and, although he
did ultimately take the phone from her, “it was a struggle.”
From this testimony, the jury could reasonably conclude that
Fox resisted and that the young man reached across her
body, using both hands, to take the phone despite Fox’s
tightened grip, and succeeded only after a struggle. This
evidence supports that the young man necessarily had to
apply “[more] than just that quantum of force . . . necessary
to accomplish the mere seizing of the property.” (Morales,
supra, 49 Cal.App.3d at p. 139.) Substantial evidence
supports the robbery conviction in count 1.
10
Perjury Conviction
In his opening brief, Joseph contended that he was
incorrectly charged with perjury under section 118,
subdivision (a), a felony, when he should have been charged
with falsely reporting a crime to police under section 148.5,
subdivision (a), a misdemeanor, relying in part on the rule of
statutory construction articulated in In re Williamson (1954)
43 Cal.2d 651. Following our initial review of the record, we
asked the parties to brief the issues of: (1) whether Vehicle
Code section 10501, subdivision (a), preempts section 148.5,
subdivision (a), or section 118, subdivision (a), and (2) the
impact, if any, of the recent Court of Appeal decision in Sun,
supra, Cal.App.5th 946, with respect to this issue. Joseph
now contends that Vehicle Code section 10501, subdivision
(a) preempts section 118, subdivision (a). The Attorney
General argues section 118, subdivision (a) applies.
We hold that Vehicle Code section 10501, subdivision
(a), preempts section 118, subdivision (a), and reverse the
conviction.
Proceedings
Joseph was charged in count 3 as follows: “On or about
August 29, 2016, in the County of Los Angeles, the crime of
PERJURY BY DECLARATION, in violation of PENAL
CODE SECTION 118(a), a Felony, was committed by
11
MICHAEL JEROME JOSEPH, who did unlawfully, under
penalty of perjury, declare as true, that which was known to
be false, to wit: CHP 180 STOLEN VEHICLE REPORT.”
The jury was instructed in pertinent part: “The People
allege that the defendant made the following statement[s]:
That his car was stolen on 8/28/16.” The jury convicted
Joseph of perjury by declaration pursuant to section 118,
subdivision (a).
Relevant Statutes
As pertinent here, section 118, subdivision (a), under
which Joseph was charged and convicted, provides that:
“Every person who . . . declares . . . under penalty of perjury
in any of the cases in which . . . declarations . . . [are]
permitted by law of the State of California under penalty of
perjury and willfully states as true any material matter
which he or she knows to be false, is guilty of perjury.” “A
‘declaration’ is an unsworn written statement certified to be
true under penalty of perjury. (Code Civ. Proc., § 2015.5.)”
(People v. Griffini (1998) 65 Cal.App.4th 581, 586.)
Section 148.5, subdivision (a), the statute which Joseph
argued preempted section 118, subdivision (a) in his opening
brief, makes it a misdemeanor to “report[] to any peace
officer . . . that a felony or misdemeanor has been committed,
knowing the report to be false . . . .”
Vehicle Code section 10501, subdivision (a), which we
asked the parties to discuss in their supplemental briefing,
12
provides that “[i]t is unlawful for any person to make or file
a false or fraudulent report of theft of a vehicle required to
be registered under this code with any law enforcement
agency with intent to deceive.” (Veh. Code, § 10501, subd.
(a).) A first conviction for violating section 10501,
subdivision (a), is a misdemeanor. (People v. Murphy (2011)
52 Cal.4th 81, 85 (Murphy).)
The Williamson Rule
“Under the Williamson rule, if a general statute
includes the same conduct as a special statute,[4] the court
infers that the Legislature intended that conduct to be
prosecuted exclusively under the special statute. In effect,
the special statute is interpreted as creating an exception to
the general statute for conduct that otherwise could be
prosecuted under either statute. (Ibid.) ‘The rule is not one
of constitutional or statutory mandate, but serves as an aid
to judicial interpretation when two statutes conflict.’ (People
v. Walker (2002) 29 Cal.4th 577, 586.) ‘The doctrine that a
specific statute precludes any prosecution under a general
statute is a rule designed to ascertain and carry out
legislative intent. The fact that the Legislature has enacted
a specific statute covering much the same ground as a more
general law is a powerful indication that the Legislature
intended the specific provision alone to apply. Indeed, in
4 The case law uses the terms “specific” and “special”
statute interchangeably, as do we.
13
most instances, an overlap of provisions is determinative of
the issue of legislative intent and “requires us to give effect
to the special provision alone in the face of the dual
applicability of the general provision . . . and the special
provision . . . .” (People v. Gilbert [(1969)] 1 Cal.3d [475,]
481.)’ (People v. Jenkins (1980) 28 Cal.3d 494, 505–506
(Jenkins), fn. omitted.)” (Murphy, supra, 52 Cal.4th at
p. 86.)
“Absent some indication of legislative intent to the
contrary, the Williamson rule applies when (1) ‘each element
of the general statute corresponds to an element on the face
of the special statute’ or (2) when ‘it appears from the
statutory context that a violation of the special statute will
necessarily or commonly result in a violation of the general
statute.’ (People v. Watson (1981) 30 Cal.3d 290, 295–296.)
In its clearest application, the rule is triggered when a
violation of a provision of the special statute would
inevitably constitute a violation of the general statute . . . .
[¶] On the other hand, if the more general statute contains
an element that is not contained in the special statute and
that element would not commonly occur in the context of a
violation of the special statute, we do not assume that the
Legislature intended to preclude prosecution under the
general statute. In such situations, because the general
statute contemplates more culpable conduct, it is reasonable
to infer that the Legislature intended to punish such conduct
more severely.” (Murphy, supra, 52 Cal.4th at pp. 86–87.)
14
“[T]hat the general statute contains an element not
within the special statute does not necessarily mean that the
Williamson rule does not apply. ‘It is not correct to assume
that the [Williamson] rule is inapplicable whenever the
general statute contains an element not found within the
four corners of the “special” law. Rather, the courts must
consider the context in which the statutes are placed. If it
appears from the entire context that a violation of the
“special” statute will necessarily or commonly result in a
violation of the “general” statute, the Williamson rule may
apply even though the elements of the general statute are
not mirrored on the face of the special statute.’ (Jenkins,
supra, 28 Cal.3d at p. 502.)” (Murphy, supra, 52 Cal.4th at
p. 87.)
Cases Applying the Williamson Rule
People v. Jenkins
In Jenkins, supra, 28 Cal.3d 494, the Supreme Court
addressed the issue of whether the defendant could be
prosecuted under both Welfare and Institutions Code section
11483 for fraudulently obtaining aid to families with
dependent children and section 118 for perjury. In that case,
the general provisions providing for public assistance
included Welfare and Institutions Code section 11054, which
required an affirmation of eligibility under penalty of perjury
15
before a person could receive aid.5 (Jenkins, supra, at
p. 499.)
The Court of Appeal had compared the general and
special statutes, determined that not all elements of the
general statute were present in the special statute, and
concluded that the Williamson rule did not apply. The
Supreme Court reversed, holding that this was not the end
of the analysis: “[T]he Williamson rule is applicable when
each element of the ‘general’ statute corresponds to an
element on the face of the ‘specific’ statute. However, the
converse does not necessarily follow. It is not correct to
assume that the rule is inapplicable whenever the general
statute contains an element not found within the four
corners of the ‘special’ law. Rather, the courts must consider
the context in which the statutes are placed. If it appears
from the entire context that a violation of the ‘special’
statute will necessarily or commonly result in a violation of
the ‘general’ statute, the Williamson rule may apply even
though the elements of the general statute are not mirrored
on the face of the special statute.” (Jenkins, supra, 28 Cal.3d
at p. 502.)
5 Under Welfare and Institutions Code section 11054,
any person who “signs ‘a statement containing such
declaration’ and willfully and knowingly with intent to
deceive states as true any material matter which he knows
to be false, . . . is ‘subject to the penalties prescribed for
perjury in the Penal Code.’ ([Welf. & Inst. Code, § 11054].)”
(Jenkins, supra, 28 Cal.3d at p. 499.)
16
The Supreme Court next considered the context in
which the statutes were placed. (Jenkins, supra, 28 Cal.3d
at pp. 502–504.) It determined that because filing for
benefits would always require an affirmation of eligibility
under penalty of perjury, both statutes would always apply
to the conduct at issue. Normally, this would resolve the
issue and result in the application of the special statute only.
(Id. at p. 505.) In the case of Welfare and Institutions Code
section 11483, however, the Legislature had clearly stated
the opposite intent, by requiring that eligibility be certified
under penalty of perjury through Welfare and Institutions
Code section 11054. The clear expression of Legislative
intent trumped the Williamson analysis. The court held that
the defendant could be prosecuted under the general perjury
statute. (Id. at pp. 505–509.)
People v. Murphy
In Murphy, supra, 52 Cal.4th 81, the defendant
submitted a false report that her vehicle had been stolen to a
deputy sheriff, using the same form at issue here—CHP-180.
(Id. at p. 85.) The Supreme Court reversed Murphy’s felony
conviction under section 115, subdivision (a), a general
statute governing the offering of a false instrument for filing
in a public office, because it determined that the Legislature
intended that her conduct be prosecuted under Vehicle Code
section 10501, subdivision (a), which “specifically and
narrowly addresse[d] [her] conduct of filing a false vehicle
17
theft report.” (Id. at pp. 86, 94–95.) Applying the
Williamson rule, the court concluded that section 115 was
the more general statute “because it applies to a broader
range of documents that may be filed in any public office.”
(Id. at p. 88.) The court determined that each element of
Vehicle Code section 10501 had a counterpart in section 115.
(Id. at pp. 88–89.) The main issue in contention was
whether a violation of section 10501 necessarily or commonly
required filing an “instrument.” (Id. at p. 89.)
The People first argued that because Vehicle Code
section 10501 could be violated in two ways—by orally
“making” a report or “filing” a written report—and that only
one means of violating the statute was prohibited by section
115—offering an “instrument,” a type of written document—
the Williamson rule did not apply. (Murphy, supra, 52
Cal.4th at p. 89.) The Murphy court rejected this argument,
agreeing with the defendant that when a special statute may
be violated in two ways, the analysis focuses solely on the
way in which the defendant violated the statute. (Id. at
pp. 89–91.)
The People also asserted that even if the court’s
analysis focused on false written reports, this type of conduct
would not necessarily or commonly violate section 115
because although the report the defendant filed utilizing
CHP-180 qualified as an instrument, not all written vehicle
theft reports would constitute “instruments” within the
meaning of section 115. (Murphy, supra, 52 Cal.4th at
pp. 91–92.) The Murphy court found it unnecessary to define
18
the term “instrument” because “even if a false vehicle theft
report may on occasion be filed in other, less formal formats,
it seems safe to assume that the filing of CHP form No. 180
or a comparable form is one of the most common means of
violating Vehicle Code section 10501.” (Id. at p. 94.)
Accordingly, filing a false vehicle theft report in violation of
Vehicle Code section 10501 would commonly result in a
violation of section 115, such that Vehicle Code section
10501 was the applicable statute. (Ibid.)
In so holding, the court specifically declined to address
the People’s argument “that because [the] defendant’s
conduct in signing the report under penalty of perjury makes
her crime more egregious than that of a person who submits
a false report without a signature under penalty of perjury,
the greater punishment is justified,” which raised “the
entirely different issue of whether the filing of a false vehicle
theft report could be the basis of a prosecution under Penal
Code section 118, the statute that specifically addresses
perjury, if the elements of that offense were established. (Cf.
Jenkins, supra, 28 Cal.3d 494.)” (Murphy, supra, at p. 92, fn.
1.)
People v. Sun
In Sun, supra, 29 Cal.App.5th, the defendant pleaded
guilty to two counts of assault with a deadly weapon under
section 245, subdivision (a), and six counts for discharging a
laser into the cockpit of an occupied aircraft (§ 247.5) based
19
on the same conduct. (Id. at pp. 949–950.) As part of the
plea agreement, he waived his right to appeal all issues,
with the exception of the issue of whether the Williamson
rule prohibited his convictions for assault with a deadly
weapon. (Ibid.) On appeal, the defendant argued that
prosecution for the general offense of assault with a deadly
weapon (§ 245) was precluded by the specific statutes
addressing unlawful use of a laser (§ 247.5).6 The Court of
Appeal agreed. (Sun, supra, at p. 950.)
The court determined that the statutes at issue in Sun
contained disparate elements. Assault with a deadly weapon
required “probability of injury to another,” which section
247.5 did not. As a result, the first test of the Williamson
analysis was not met. (Sun, supra, 29 Cal.App.5th at
p. 951.) Looking at the defendant’s specific conduct however,
it was clear that the second test would apply: “The record
shows [the defendant] violated section 247.5 by discharging
a laser into the cockpit of an airborne helicopter in the
middle of the night. Due to the obvious and foreseeable
danger of such conduct, it would commonly constitute an
assault with a deadly weapon within the meaning of section
245. Therefore, [the defendant] should not have been
6 The defendant additionally alleged that sections
417.25 and 417.26 preempted prosecution for his conduct
under section 245, but because the Sun court determined
that his conviction must be reversed because section 247.5
preempted section 245, it did not address the applicability of
those sections. (Sun, supra, 29 Cal.App.5th at p. 953, fn. 3.)
20
prosecuted under that section.” (Id. at p. 952.) The Court of
Appeal reversed the defendant’s two convictions for assault
with a deadly weapon. (Id. at p. 953.)
Analysis
We begin with the issue of whether Vehicle Code
section 10501, which “specifically and narrowly addresses
[Joseph’s] conduct of filing a false vehicle theft report,”
preempts section 118. (Murphy, supra, 52 Cal.4th at p. 85.)
Following the Williamson analysis, we first determine
whether the “general” perjury statute contains elements that
the “specific” false vehicle theft report statute does not. In
this respect our case is similar to Jenkins, in that “the
assertedly ‘general’ crime of perjury requires as an element
of the offense that a false statement be made under oath or
affirmation whereas the crime of [falsely reporting vehicle
theft] applies on its face to any false statement [that a
vehicle has been stolen].” (Jenkins, supra, 28 Cal.3d at
p. 503 [comparing section 118 to Welfare and Institutions
Code section 11483]; see also Sun, supra, 29 Cal.App.5th at
p. 951 [statutes contained disparate elements such that each
could be violated without violating the other].) Having
determined that the elements of the offenses differ, we next
look to the context surrounding the statutes to determine the
true extent to which they overlap, and thereby discern the
Legislature’s intent. (See Jenkins, supra, at p. 503.)
21
We first focus on the way in which Joseph violated the
statute—filing a false stolen vehicle report—to determine
whether that specific conduct would “‘necessarily or
commonly result in a violation of the general statute.’
[Citation.]” (Murphy, supra, 52 Cal.4th at p. 86.) Here, the
CHP-180 form states that it is furnished to all peace officers.
Additionally, Deputy Wurzer testified that it is the standard
form used when a vehicle is stolen and that the registered
owner is required to sign the form. Neither party has
contested that CHP-180 is the standard form used for
reporting a vehicle stolen. Under the circumstances, we
agree with the Murphy court it appears “the filing of CHP
form No. 180 or a comparable form is one of the most
common means of violating Vehicle Code section 10501.” (Id.
at p. 94.) It follows that filing a false vehicle theft report in
violation of Vehicle Code section 10501 “would commonly
result” in a violation of section 118. (Ibid. [holding that
filing a false vehicle theft report using CHP-180 or similar
written form will commonly constitute forgery]; Sun, supra,
29 Cal.App.5th at p. 953 [holding that discharging a laser
into the cockpit of an airborne helicopter at night will
commonly constitute assault with a deadly weapon].)
Finally, we note that there is no provision in the
Vehicle Code requiring that a stolen vehicle report be filed
under penalty of perjury, and no other indication that the
Legislature intended to allow prosecution under section 118
as well as Vehicle Code section 10501, as was the case in
Jenkins. We therefore conclude that Vehicle Code section
22
10501 preempts section 118, and reverse Joseph’s conviction
in count 3.7
DISPOSITION
Joseph’s conviction for perjury (§ 118, subd. (a)) in
count 3 is reversed. In all other respects, the judgment is
affirmed.
MOOR, J.
I concur:
KIM, J.
7 Because Joseph’s conviction must be reversed, we
need not reach the issue of whether his prosecution under
Penal Code section 118 is also precluded by section 148.5.
(See Sun, supra, 29 Cal.App.5th at p. 953, fn. 3; Murphy,
supra, 52 Cal.4th at p. 95, fn. 4.)
23
The People v. Michael Joseph
B285062
BAKER, Acting P. J., Concurring
I concur in the majority’s analysis of defendant Michael
Joseph’s (defendant’s) claim that there was insufficient
evidence to support his conviction for robbery. I write
separately to outline why I agree the other claim defendant
raises—that the rule espoused in In re Williamson (1954) 43
Cal.2d 651 (Williamson) should have barred his prosecution
for felony perjury under Penal Code section 118—must be
rejected.
As the majority correctly explains, the Williamson rule
is a rule of statutory interpretation. (People v. Walker (2002)
29 Cal.4th 577, 586 [“The rule is not one of constitutional or
statutory mandate, but serves as an aid to judicial
interpretation when two statutes conflict”].) In theory, the
rule’s counsel is straightforward and sensible: “[I]f a general
statute includes the same conduct as a special statute, the
court infers that the Legislature intended that conduct to be
prosecuted exclusively under the special statute.” (People v.
Murphy (2011) 52 Cal.4th 81, 86 (Murphy).) As the
reasoning goes, “‘[t]he fact that the Legislature has enacted
a specific statute covering much the same ground as a more
general law is a powerful indication that the Legislature
intended the specific provision alone to apply.’” (Ibid.) As I
will explain, however, things seem to get more complicated
in practice.
Resolving an issue the Murphy Court expressly
declined to reach (Murphy, supra, 52 Cal.4th at p. 92, fn. 1),
today’s opinion holds defendant’s endorsement of a CHP-180
form to report his vehicle stolen cannot form the basis of a
prosecution under the general perjury statute because the
Legislature has enacted a special misdemeanor statute (Veh.
Code, § 10501) that punishes false vehicle theft reporting.
The majority so holds not because the elements of Penal
Code section 118 perjury correspond to the elements of
Vehicle Code section 10501—it is undisputed they do not—
but on the theory that a violation of Vehicle Code section
10501 will commonly result in a violation of Penal Code
section 118 because the CHP-180 form includes a penalty-of-
perjury advisement and CHP-180 forms are commonly used
to report vehicles stolen. (See generally People v. Jenkins
(1980) 28 Cal.3d 494, 502 [Williamson rule can apply for
either of two reasons: (1) because each element of a general
statute corresponds to an element on the face of a more
specific statute, or (2) because “it appears from the entire
context that a violation of the ‘special’ statute will
necessarily or commonly result in a violation of the ‘general’
statute”].)
That conclusion follows directly from the rationale in
Murphy. In that case, our Supreme Court believed “it
seem[ed] safe to assume” that completion and endorsement
2
of CHP-180 forms “is one of the most common means of
violating Vehicle Code section 10501.” (Murphy, supra, 52
Cal.4th at p. 94.) The Murphy Court conceded the record in
that case did not reveal how frequently the form was used,
but there was at least testimony from the officer who took
the stolen vehicle report in that case “that he would fill out
such a form whenever someone reported a stolen vehicle.”
(Ibid.) As outlined by the majority, we have the equivalent
minimal testimony in this case.
Aspects of the analysis in Murphy do, however, provoke
further thought. As applied in Murphy, the Williamson rule,
which is a maxim of sorts for determining legislative intent,
can turn not just on logical inferences or legal requirements
but on real-world practical facts. That is, the Murphy Court
believed it could infer filing of a CHP-180 form is one of the
most common means of violating Vehicle Code section 10501
(an empirical fact, and one that is subject to change over
time) and determined, “[c]onsequently,” a violation of the
specific statute, Vehicle Code section 10501, would
commonly result in a violation of the general statue, Penal
Code section 118. (Murphy, supra, 52 Cal.4th at p. 94.) This
determination then led to the further inference that “under
the Williamson rule, . . . the Legislature, in specifying that
such conduct constitutes a misdemeanor, intended to create
an exception to the felony punishment specified in the more
general statute.” (Ibid.)
When a “commonly result[s]” analysis under the
Williamson rule depends on a dynamic, factual premise (how
3
often it is stolen vehicle reports are made via a CHP-180
form, use of which does not appear to be compelled by State
law or rule), it would seem a further showing must be made
to draw the legislative intent inference at the heart of the
rule. That is, a defendant must show not only what the
common practice is, but that the common practice existed at
the time the relevant special statute was enacted (or perhaps
substantively amended). When the practice at issue is not a
fact in common knowledge (and I would argue use of CHP-
180 forms is not), determining the prevalence of the practice
at the time the Legislature acted, and the Legislature’s
awareness of the practice, provide the key indicia of the
Legislature’s intent.
That is not how Murphy applied the Williamson rule,
however, and I believe Murphy’s application is controlling. I
therefore concur in the majority’s disposition of defendant’s
appeal.
BAKER, Acting P. J.
4