Opinion
H045131
07-20-2018
THE PEOPLE, Plaintiff and Appellant, v. WENDELL JAMON JONES, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1761423)
In this appeal, the People challenge the denial of their motion to compel the reinstatement of a charge of conspiracy to violate Business and Professions Code section 6152. The superior court declined to reinstate that count of the complaint, which alleged that defendant Wendell Jamon Jones had hired codefendants Edgar Lopez and Jose Juan Herrera to solicit and procure business for Jones. We will affirm the order.
All further statutory references are to the Business and Professions Code except as otherwise specified.
Background
In April 2017 the prosecution filed a felony complaint against all three defendants, accusing them in count 1 of conspiracy to violate section 6152, subdivision (a). Three overt acts were charged: (1) that Jones, an attorney, hired Herrera and Lopez to "solicit and procure business for him"; (2) that Herrera and Lopez "employed agents who would contact potential clients by telephone or in person to solicit and procure business for [Jones]"; and (3) that Jones paid Herrera and Lopez a commission for each client who hired Jones after being referred by their agents. In count 2, the prosecution alleged conspiracy to violate Civil Code section 2944.7, subdivision (a), by Jones's hiring Herrera and Lopez to solicit and procure clients on whose behalf Jones would perform mortgage loan modifications. Herrera and Lopez then allegedly employed agents to contact potential clients for this purpose. The complaint further alleged that defendants requested and obtained payments from clients before Jones fully performed the mortgage loan modification services, contrary to section 2944.7, subdivision (a). Finally, Jones was accused in count 3 of practicing law while suspended from State Bar membership, in violation of section 6126, subdivision (b).
All three defendants demurred to the complaint, challenging the two conspiracy counts. Relying on People v. Mayers (1980) 110 Cal.App.3d 809 (Mayers), defendants argued that the prosecution was improperly attempting by "sleight of hand" to elevate a misdemeanor to a felony by charging the same crime as conspiracy, where the criminal agreement was already punishable by a substantive statute prohibiting the specific conduct. Citing Williams v. Superior Court (1973) 30 Cal.App.3d 8 (Williams), defendants also urged that "a misdemeanor offense . . . cannot spuriously be 'boo[t]strapped to a felony level' by calling it a conspiracy." In other words, they argued, a charge of conspiracy cannot be used to "bypass" the legislative intent to impose a lesser penalty on the proscribed conduct.
Lopez and Jones filed substantively identical demurrers, in which Herrera subsequently joined.
The magistrate was persuaded by the reasoning of Mayers and of In re Williamson (1954) 43 Cal.2d 651, 655 (Williamson), and he accordingly sustained the demurrers with respect to count 1, the conspiracy to violate section 6152. Pursuant to Penal Code section 871.5, the People moved to compel the magistrate to reinstate count 1, citing Hutchins v. Municipal Court (1976) 61 Cal.App.3d 77 (Hutchins). After receiving written and oral argument from all parties, the superior court denied the motion, stating that the magistrate had not erred as a matter of law by relying on Mayers instead of Hutchins. From that July 27, 2017 order, the People brought this timely appeal, authorized by Penal Code sections 871.5, subdivision (f), and 1238, subdivision (a)(9).
Discussion
1. Standards of Review
Penal Code section 871.5 allows the prosecution to request the superior court to order reinstatement of all or a portion of a complaint. (People v. Toney (2004) 32 Cal.4th 228, 230.) "In determining whether to compel reinstatement of a complaint dismissed after the granting of a defendant's suppression motion by the magistrate at a preliminary hearing, the superior court reviews the legal soundness of the magistrate's ruling on the suppression motion [citations] based on 'the record of the proceedings before the magistrate.' (§ 871.5, subd. (c))." (Id. at p. 233.) "On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior court's ruling and directly examine the magistrate's ruling to determine [whether] the dismissal of the complaint was erroneous as a matter of law. To the extent the magistrate's decision rests upon factual findings, '[w]e, like the superior court, must draw every legitimate inference in favor of the magistrate's ruling and cannot substitute our judgment, on the credibility or weight of the evidence, for that of the magistrate.' [Citation.]" (People v. Massey (2000) 79 Cal.App.4th 204, 210; People v. Shrier (2010) 190 Cal.App.4th 400, 409-410.); see People v. Slaughter (1984) 35 Cal.3d 629, 642 [magistrate's dismissal of charges without findings of fact "is erroneous as a matter of law if the evidentiary record discloses a rational basis for believing the defendant guilty of the charged crime"]. 2. Conspiracy to Violate Section 6152
Section 6152, subdivision (a), makes it "unlawful for: [¶] (1) Any person, in an individual capacity or in a capacity as a public or private employee, or for any firm, corporation, partnership or association to act as a runner or capper for any attorneys or to solicit any business for any attorneys in and about the state prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, superior courts, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever. [¶] (2) Any person to solicit another person to commit or join in the commission of a violation of subdivision (a)."
Section 6151, subdivision (a), defines "runner or capper" as "any person, firm, association or corporation acting for consideration in any manner or in any capacity as an agent for an attorney at law or law firm, whether the attorney or any member of the law firm is admitted in California or any other jurisdiction, in the solicitation or procurement of business for the attorney at law or law firm as provided in this article."
Penal Code section 182, subdivision (a)(1), punishes the act of conspiring to "commit any crime." " 'Conspiracy requires two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy. . . . A conspiracy requires (1) the intent to agree, and (2) the intent to commit the underlying substantive offense.' [Citation.]" (People v. Homick (2012) 55 Cal.4th 816, 870; People v. Garton (2018) 4 Cal.5th 485, 516.) Thus, "where two or more persons agree that they will commit an unlawful act or achieve a lawful object by unlawful means, and in furtherance of the agreement commit an overt act towards achievement of their object, they are guilty of conspiracy." (Hutchins, supra, 61 Cal.App.3d at p. 81; cf. People v. Johnson (2013) 57 Cal.4th 250, 266 (Johnson) [conspiracy "requires an intentional agreement to commit the offense, a specific intent that one or more conspirators will commit the elements of that offense, and an overt act in furtherance of the conspiracy"].)
"Traditionally, the law has considered conspiracy and the completed substantive offense to be separate crimes," which can be punished separately. (Iannelli v. United States (1975) 420 U.S. 770, 777-778 (Ianelli).) "Indeed, the Court has even held that the conspiracy can be punished more harshly than the accomplishment of its purpose." (Id. at p. 778.) Thus, "it is generally proper to charge conspiracy even if in so doing the punishment invoked is more severe than that provided for the criminal conduct which is the objective of the conspiracy." (People v. Pangelina (1981) 117 Cal.App.3d 414, 419-420 (Pangelina).) "The rationale for punishing conspiracy more severely than the offense that is the object of the conspiracy is that a conspiracy increases the likelihood that the criminal object successfully will be attained, and 'makes more likely the commission of crimes unrelated to the original purpose for which the combination was formed.' [Citations.] Collaboration in a criminal enterprise significantly magnifies the risks to society by increasing the amount of injury that may be inflicted." (People v. Morante (1999) 20 Cal.4th 403, 416, fn. 5, quoting Callanan v. United States (1961) 364 U.S. 587, 593-594; see also Ianelli, supra, at p. 778 [affirming rationale that conspiracy "poses distinct dangers quite apart from those of the substantive offense"].) Consequently, a conspiracy to commit a misdemeanor may be punished as a felony in light of the "greater potential threat to the public" posed by "collaborative criminal activities." (People v. Tatman (1993) 20 Cal.App.4th 1, 8; Pangelina, supra, at pp. 419-420; see also People v. Zamora (1976) 18 Cal.3d 538, 555 [discussing "group danger rationale" of conspiracy liability]; but see Mayers, supra, 110 Cal.App.3d at p. 814, fn. 2 [criticizing the group-danger rationale of conspiracy].)
In this case, all three defendants invoked "Wharton's Rule," an exception to the general principle that conspiracy and the substantive offense can be separately punished. In its revised form, Wharton's Rule states that "[a]n agreement between two persons to commit an offense does not constitute conspiracy when the target offense is so defined that it can be committed only by the participation of two persons." (4 Charles E. Torcia, Wharton's Criminal Law § 684 (15th ed. 1996).) Thus, the question posed by defendants was whether they could be charged with felony conspiracy to commit a misdemeanor offense that ostensibly required an agreement between two or more participants.
In Ianelli, the United States Supreme Court recognized that the rule "has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary. The classic Wharton's Rule offenses—adultery, incest, bigamy, duelling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large. [Citation.] Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert. It cannot, for example, readily be assumed that an agreement to commit an offense of this nature will produce agreements to engage in a more general pattern of criminal conduct." (Ianelli, supra, 420 U.S. at pp. 782-784, fns. omitted; see People v. Lee (2006) 136 Cal.App.4th 522, 530 [upholding inmate's conviction for conspiring to furnish controlled substance to inmate, rejecting application of Wharton's Rule, where threat extends beyond participants and cooperation unnecessary for commission of substantive offense]; but see Mayers, supra, 110 Cal.App.3d at p. 815 [applying Wharton's Rule to support reversal of conspiracy conviction where it was impossible to commit substantive crime of three-card monte without concerted effort amounting to conspiracy between dealer and shill].)
The High Court in Ianelli counseled against extending Wharton's Rule "beyond the logic that supports it." (Ianelli, supra, 420 U.S. at p. 786.) "[A]s the Rule is essentially an aid to the determination of legislative intent, it must defer to a discernible legislative judgment." (Ibid.) "Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity. The substantive offense therefore presents some of the same threats that the law of conspiracy normally is thought to guard against, and it cannot automatically be assumed that the Legislature intended the conspiracy and the substantive offense to remain as discrete crimes upon consummation of the latter. Thus, absent legislative intent to the contrary, the Rule supports a presumption that the two merge when the substantive offense is proved." (Id. at pp. 785-786.)
On appeal, the People renew their argument that Hutchins permits prosecution of all three defendants for violating section 6152. In Hutchins, the superior court issued a peremptory writ of prohibition to restrict the prosecution of an attorney for aiding and abetting and conspiring with two runners or cappers to violate section 6152. The defendant attorney maintained that he could not be prosecuted as either an aider and abettor or a co-conspirator, because section 6152 required joint action but prescribed no punishment for the attorney's conduct. Rejecting this view, the Second District, Division Five, reversed. The court emphasized that even when a statute does not specifically target the defendant as the object of punishment, the conspirator or aider and abettor may still be prosecuted, unless "there was an affirmative legislative intent to create an exception to the general rule of liability of aiders and abettors and conspirators." (Hutchins, supra, 61 Cal.App.3d at p. 84.) The court concluded, contrary to the position of the attorney involved, that there was no legislative intent to exempt the attorney from liability merely because the statute did not explicitly provide for the attorney's punishment. (Cf. May v. United States (D.C. Cir. 1949) 175 F.2d 994, 1004 [though statute directly prohibited receiving compensation from those doing business with the government, the payors also could be prosecuted for aiding and abetting the recipient Congressman].) In examining the legislative history of section 6152, which was enacted in response to the "scandalous" problem of "ambulance chasing" by attorneys (Hutchins, supra, at p. 85), the court could find no indication that attorneys were to be exempted from prosecution for aiding and abetting or conspiring with runners and cappers. (Id. at pp. 87-89.)
This precise rationale has been rendered moot, since the 1976 amendment of section 6152 added subdivision (a)(2), making it unlawful for any person "to solicit another person to commit or join in the commission of a violation of subdivision (a)." An attorney working with runners or cappers to achieve the aim of soliciting clients may now be liable along with the agents. --------
Defendant Hutchins cited several prior decisions in maintaining that he could not be charged with aiding and abetting or conspiracy to violate section 6152 because an agent's commission of the substantive offense would occasion no punishment for an attorney. (See, e.g., Ex parte Cooper (1912) 162 Cal. 81, 86 [unmarried participant in adulterous affair was excluded from criminal adultery statute and therefore could not be prosecuted as aider and abettor in the offense]; Gebardi v. United States (1932) 287 U.S. 112, 118-119 [woman's mere acquiescence to being transported across state lines in violation of the Mann Act does not subject her to prosecution for conspiracy]; Williams, supra, 30 Cal.App.3d at p. 15 [prostitute convicted of misdemeanor prostitution cannot also be guilty of feloniously conspiring with her pimp]; see also People v. Clapp (1944) 24 Cal.2d 835, 838-839 [because undergoing illegal abortion punishable as a separate crime, she could not be liable as accomplice to defendants' performance of the abortion] ; accord, People v. Buffum (1953) 40 Cal.2d 709, 721-722, overruled on another point in Morante, supra, 40 Cal.4th at pp. 432-434 [woman voluntarily submitting to abortion may not be prosecuted for conspiracy to violate statute prohibiting performing abortion].) Thus, where the Legislature has affirmatively indicated an intent to punish an individual's participation less severely than the target of the criminal statute, she "may not be subjected to greater punishment by the misuse of the conspiracy statute." (Williams, supra, at p. 15.) Precluding conviction of conspiracy is especially important when the criminal statute is intended specifically to protect the accused; thus, a minor cannot be liable for aiding and abetting or conspiring in her own statutory rape. (See, e.g., In re Meagan R. (1996) 42 Cal.App.4th 17, 25 [rejecting theory of burglary that girl entered residence in order to aid and abet principal's statutory rape of her]; compare People v. Lee (2006) 136 Cal.App.4th 522, 537 [rejecting application of Wharton's Rule to inmate convicted of conspiring with outsider to smuggle illicit drugs into prison, since they could be distributed further inside the prison].)
The Hutchins court, however, distinguished the cases cited by Hutchins pertaining to the illegal activity involving prostitute and pimp, abortionist and woman obtaining the abortion, and woman acquiescing to a man's transporting her across state lines for illicit sexual relations. The flaw in Hutchins's analogy to those prior cases was that the participant woman was "considered by society to be less blameworthy morally than the other party," whereas the attorney who employs runners or cappers "is likely to be the instigator or manager of the scheme and is the person who profits financially from it. In terms of the cases cited, the position of the attorney in such situations is more closely analogous to the pimp than the prostitute or to the abortionist than the patient." (Hutchins, supra, 61 Cal.App.3d at p. 83.)
Like defendants in the case before us, the defendant in Hutchins also invoked Wharton's Rule in arguing that he could not be prosecuted for conspiracy because a violation of section 6152, a misdemeanor, necessarily involved an agreement between the attorney and the capper. The appellate court took a different view. The court noted that the statute applies when one solicits business for the attorney even without an agency relationship. Second, the court looked to Ianelli in distinguishing the circumstances contemplated by section 6152 from the typical two-party offenses covered by Wharton's Rule, where the parties to the agreement are the only ones who participate in the substantive offense and are the only ones who incur the consequences, rather than society at large. Violating section 6152, the Hutchins court noted, "does not involve a classic two-party crime such as offering and agreeing to receive a bribe, which is complete upon the agreement and involves only the parties to the agreement. Here the substantive offense is not completed until an approach is made to a victim, the potential client. Completion of the substantive offense necessarily involves a third person, and Wharton's Rule is inapplicable." (Hutchins, supra, 61 Cal.App.3d at p. 90.)
We agree with Hutchins insofar as it rejects the application of Wharton's Rule in the circumstances presented here. A violation of section 6152 is not a classic Wharton's Rule offense affecting only the parties to the act, and its commission may even extend beyond those immediate parties, as when the runners and cappers induce others to participate in their solicitation of potential clients for the attorney. (Cf. Johnson, supra, 57 Cal.4th at p. 266 [gang participant may be convicted of conspiracy to actively participate in a criminal street gang]; Ianelli, supra, 420 U.S. at p. 784 [large-scale gambling activities seek additional participants beyond those charged, and those prosecuted for conspiracy may be different from those charged with the substantive offense].) Furthermore, none of the participants in the charged violation of section 6152 was intended to be protected by this legislation; on the contrary, in this statute the Legislature has expressed the intent to curb the practice of attorneys and their agents to personally solicit others to become the attorney's clients. (See generally Ohralik v. Ohio State Bar Ass'n (1978) 436 U.S. 447, 461 [discussing the state's interest in protecting consumers against the "substantive evils of solicitation" of attorney clients].)
Defendants, however, maintain that the magistrate correctly sustained their demurrers based on another principle expressed in Williamson, supra, 43 Cal.2d 651. There our Supreme Court held that a violation of section 7030, a misdemeanor, could not be charged as a violation of Penal Code section 182, the general statute addressing conspiracies to "commit any crime," because section 7030 already proscribed not only acting as a contractor without a license but also conspiring to do so. The court applied the principle that "where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment." (Williamson, supra, 43 Cal.2d at p. 654.) Accordingly, the court held, punishing the section 7030 violation as a general conspiracy under Penal Code section 182 "would be inconsistent with the designation of the particular conspiracy as a misdemeanor." (Williamson, supra, at p. 655; see also Mayers, supra, 110 Cal.App.3d at p. 814 [citing Williamson in invalidating prosecution for conspiracy to violate Penal Code section 332, a misdemeanor which requires "concerted effort" between dealer and shill].)
Our Supreme Court elaborated on this principle in People v. Murphy (2011) 52 Cal.4th 81 (Murphy). After examining the defendant's conviction for offering a false or forged instrument for filing or recording (Pen. Code, § 115), the court held that she should have been prosecuted instead for a more specific statute, filing a false report of a vehicle theft (Veh. Code, § 10501), a misdemeanor. The court applied Williamson, explaining, "Under the Williamson rule, if 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. 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. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.]" (Murphy, supra, at p. 86.) Accordingly, "[a]bsent 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.' [Citation.]" (Ibid.)
The People argue that in this case prosecution under the general conspiracy statute was proper because a violation of section 6152 does not require an agreement between the parties; an individual can commit the offense without a conspiracy. We cannot endorse this argument, however, without disregarding the full import of the Supreme Court's analysis in Murphy. While Murphy exemplifies the "clearest application" of Williamson—i.e., "when a violation of a provision of the special statute would inevitably constitute a violation of the general statute" (Murphy, supra, 52 Cal.4th at p. 86)—its reach is broader. " '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.' [Citation.]" (Id. at p. 87, second italics added; compare Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1009 [felony prosecution for offering a false document precluded under Williamson, as it includes the same conduct as specific Government Code statute addressing public official's failure to disclose all assets and investments] with People v. Mullins (2018) 19 Cal.App.5th 594 [Williamson rationale inapposite where facts take case beyond identity theft and justify robbery conviction]; see also In re Charles G. (2017) 14 Cal.App.5th 945, 951 [possession of a firearm by a minor and carrying a concealed weapon are distinct offenses serving different purposes; thus, Williamson and Murphy inapplicable and minor could be found to have violated both]; People v. Webb (2017) 13 Cal.App.5th 486, 492, disapproved on another point in People v. Ruiz (2018) 4 Cal.5th 1100, 1121-1122 & fn. 8 [Williamson rule inapplicable where defendant could be convicted of felony identity theft notwithstanding specific misdemeanor statutes proscribing false information to a police officer and false representation of identity to a peace officer, as identity theft requires additional elements].)
Nor is it necessary that both of two alternative means of violating the special statute be precluded by the general one; if the defendant's conduct falls within only one clause of the special statute, that is sufficient to preclude prosecution under the applicable general statute. (Murphy, supra, 52 Cal.4th at pp. 89-90.) In Murphy, the filing of a false report of vehicle theft would commonly result in a violation of the more general statute, offering a false instrument for filing or recording, even though the special statute included making a false oral report. "In adopting a specific statute, the Legislature has focused its attention on a particular type of conduct and has identified that conduct as deserving a particular punishment. Consequently, we infer that the Legislature intended that such conduct should be punished under the special statute and not under a more general statute which, although broad enough to include such conduct, was adopted without particular consideration of such conduct." (Id. at p. 91.)
Likewise, although one may solicit business for an attorney without a specific agreement with the attorney to procure clients for him or her, violations of the statute will commonly occur together with the attorney's own violation of section 6152, subdivision (a)(2), most likely through an agreement to compensate the individual for accomplishing that objective. The definition of "runner or capper" itself contemplates a paid agency relationship. The charges against the three defendants in this case illustrate that common scenario: all were accused of acting under an agreement providing that Jones would pay Lopez and Herrera to "solicit and procure business for him." That section 6152 could theoretically be violated without such an arrangement is immaterial for purposes of this determination.
We thus conclude that by enacting section 6152 the Legislature intended to reach specific misdemeanor conduct reflecting an agreement between an attorney and another person to solicit or procure business for the attorney. Because the magistrate did not err as a matter of law in sustaining the demurrer to the felony count of conspiracy in count 1, the superior court properly denied the People's motion to reinstate that portion of the complaint.
Disposition
The order is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
BAMATTRE-MANOUKIAN, J.