The Volokh Conspiracy
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First Person Isn't Third Person: Threatening Suicide Isn't Felony Witness Tampering in California
In People v. Johnson, decided by the California Court of Appeal two weeks ago, in an opinion by Justice Ioana Petrou, joined by Presiding Justice Alison Tucher and Justice Victor Rodriguez, a defendant was convicted of felony witness tampering "based on a statement Johnson made to his family that if the police came, he would blow his brains out." The California witness tampering statute makes it a crime (punishable as a misdemeanor or a felony), "to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime" from "[m]aking any report of that victimization" to the authorities. But it also makes it a more serious crime, and necessarily a felony, to do so
[w]here the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.
The court held that Johnson's threat of suicide didn't qualify under this "witness or victim or any third person" provision:
The Merriam-Webster Online Dictionary defines "third person" as "a set of linguistic forms (such as verb forms, pronouns, and inflectional affixes) referring to one that is neither the speaker or writer of the utterance in which they occur nor the one to whom that utterance is addressed." The entry for "third person" in Black's Law Dictionary directs us to the definition of "third party." That term is defined as "[s]omeone who is not a party to a lawsuit, agreement, or other transaction but who is usu. somehow implicated in it; someone other than the principal parties." The entry adds, "Also termed outside party; third person." Both dictionary definitions convey a third person to be a person besides the two primarily involved in a situation.
Applying these dictionary definitions in a reasonable and common-sense manner, we conclude that "third person" as used in section 136.1(c)(1) refers to an outside party who is neither the person making the threats or the person to whom such threats are being directed. Thus, when a person is attempting to dissuade another from contacting the police solely under the threat of self-harm, he or she is not threatening force or violence upon a third person. Accordingly, we conclude under the plain language of section 136.1(c)(1), a defendant who expressly or impliedly threatens force or violence upon himself or herself does not threaten a "third person" within the meaning of section 136.1(c)(1)….
[T]he People contend in a rather conclusory fashion that "third person" is simply "anyone other than the person the defendant is trying to dissuade." In their view, Johnson was a "third person" within the meaning of the statute because he was not a victim or the witness who he was trying to dissuade. This is not persuasive. Simply because Johnson cannot be categorized as a "victim" or "witness"—as set forth in section 136.1(c)(1)—does not render him a "third person." The People provide no support for this reading of the statute which reduces "third person" into a catch-all provision for all non-victims and non-witnesses. Nor do the People address the ordinary and common-sense usage of "third person" discussed above.
The People further argue that had the Legislature intended for defendants to be excluded, it could have easily stated that the act of dissuasion becomes a felony when it is accompanied by a threat of force or violence upon a witness or victim or "anyone other than the defendant." This, too, is not persuasive. The Legislature could have chosen to explicitly include a threatened act of self-harm within the ambit of section 136.1(c)(1) by simply omitting the word "third" from the text, making dissuasion by force a felony when accompanied "by force or by an express or implied threat of force or violence[ ] upon a witness or victim or any [ ] person." Instead, the Legislature chose to include "third person," and we must avoid a construction which makes that term surplusage.
Finally, the People argue excluding harm to oneself from threats upon "third persons" would lead to absurd results. They assert, "The Legislature could not possibly have intended to exclude a situation where, as here, the defendant threatened suicide in order to manipulate his family members into refraining from calling the police." We acknowledge the force of this argument, especially on the facts of this case where the threat of self-harm could be used to exploit close family connections and a child's affection for her parent.
Nonetheless, we do not consider the result absurd in light of the statute's plain meaning and purpose…. [T]he "purpose of section 136.1 … is to promote cooperation with law enforcement by criminalizing the conduct of those who seek to short-circuit investigatory efforts by dissuading victims and witnesses from reporting crime[s]." Our construction does not undermine this purpose, nor does it decriminalize attempted dissuasion based on threats of self-harm. It simply removes it from the purview of being a straight felony under section 136.1(c)(1) and instead places such conduct in the domain of section 136.1(b)(1), where it may be prosecuted as a misdemeanor or a felony….