Gilbert-Swann

In re Williamson (1954) 43 Cal.2d 651, 654.

People v. Watson (1981) 30 Cal.3d 290

People v. Murphy (2011) 52 Cal.4th 81

Supplement (1) In General. A special statute does not control if the Legislature intended that the general statute remain available. In People v. Darby (1952) 114 C.A.2d 412, 250 P.2d 743, defendant, a member of a county board of education, used his efforts to obtain a contract for J in return for benefits received from J. Govt.C. 1097 makes it a felony for a public officer (within certain classes) to be interested in a contract with his or her body or board, and former Educ.C. 1014 made it a misdemeanor for a member of the governing board of a school district to accept a bribe to influence a contract. Defendant contended that the special Education Code section was exclusively applicable. Held, defendant was properly convicted of a felony; Govt.C. 1097 was intended to apply to all state officers including school board members. (114 C.A.2d 422.) The court added this observation on the general principle: “At first blush it might appear that, after the Legislature has solemnly enacted statutes for the governance of those who conduct the affairs of a school district and set them up in buckram as ‘Education Code,’ the law-enforcing agencies would forego consulting the Government Code, the Penal Code or any other code and apply only the remedies provided in the Education Code. But to reason so is to indulge in interpreting the codes with a squinted view. The laws have been codified for the convenience of the people. All of them combined speak for the sovereign power and all constitute but a single statute. … There is no rule of statutory construction that requires the courts so to construe a statute as to render it invalid. The reverse is more nearly the rule.” (114 C.A.2d 422.) People v. Jenkins (1980) 28 C.3d 494, 170 C.R. 1, 620 P.2d 587, held that the special statute, Welf.C. 11483 (obtaining AFDC benefits by false statement), did not preclude prosecution under the general statute, P.C. 118 (perjury); the Legislature, by specifically referring to the perjury provisions of the Penal Code in other AFDC statutes, indicated its intent that P.C. 118 be available in AFDC cases. (28 C.3d 508.) In People v. Bertoldo (1978) 77 C.A.3d 627, 143 C.R. 675, the court rejected defendant's argument that P.C. 243 (felony battery on a peace officer) was a special statute controlling P.C. 245 (aggravated assault). Depending on the kind of injury or force involved, or the type of weapon used, either of these statutes could be regarded as more specific. Because there is no indication that the Legislature intended P.C. 243 to supplant P.C. 245, the choice of statute to be used is a matter of prosecutorial discretion. (77 C.A.3d 633.) In People v. Murray (2008) 167 C.A.4th 1133, 84 C.R.3d 676, defendant was properly prosecuted for both involuntary manslaughter under P.C. 192(b) and aggravated assault under P.C. 245(a) for conduct arising from a single incident; the manslaughter statute is not more specific than the assault statute, the elements of the offenses do not correspond, and a violation of the manslaughter statute does not necessarily or commonly result in a violation of the assault statute. (167 C.A.4th 1140.) The following cases also illustrate the general rule: People v. Earnest (1975) 53 C.A.3d 734, 748, 126 C.R. 107 [former wording of P.C. 548 (burning or other injury to insured property) did not preclude prosecution under former P.C. 447a (arson); neither statute could be definitively denominated as more specific]. People v. Ordonez (1991) 226 C.A.3d 1207, 1234, 1235, 277 C.R. 382 [aggravated kidnaping law (P.C. 209(a)) is not preempted by kidnap felony-murder provision of death penalty statute (P.C. 190.2(a)(17))]. People v. Artis (1993) 20 C.A.4th 1024, 1026, 25 C.R.2d 63 [because there is no conflict between P.C. 507 (embezzlement of property by tenant) and P.C. 484 (general theft statute), tenant who embezzles property may be charged under either statute]. People v. Espinoza (1997) 58 C.A.4th 248, 251, 69 C.R.2d 626 [rejecting claim that attempt statute (P.C. 664) is special sentencing statute that prevails over three strikes law]. People v. Sainz (1999) 74 C.A.4th 565, 573, 88 C.R.2d 203 [“compelling indications” of legislative intent that P.C. 12022.7 (sentence enhancement for great bodily injury in commission of felony) prevail over former Veh.C. 23190 (now Veh.C. 23566; sentencing of repeat drunk driving offenders)]. People v. Cockburn (2003) 109 C.A.4th 1151, 1158, 135 C.R.2d 807 [P.C. 273d (corporal punishment of child) does not preclude prosecution under P.C. 273a(a) (child abuse); general statute does not provide more severe penalty]. In re Maria D. (2011) 199 C.A.4th 109, 114, 131 C.R.3d 21 [P.C. 404.6(a) (misdemeanor incitement to riot) does not preclude felony prosecution under P.C. 405a (lynching) and P.C. 664 (attempt) for attempted lynching; statutes cover potentially different conduct and Legislature did not intend to cover punishment for defendant's conduct in misdemeanor statute]. (2) Where General Statute Has Additional Element. In People v. Jones (1964) 228 C.A.2d 74, 39 C.R. 302, defendant was charged with the felony of conspiracy to violate the lottery laws. He contended that the lottery misdemeanor statute (P.C. 320) should apply. Held, the conspiracy section was properly invoked. The conspiracy statute requires two persons, the lottery statute does not. Conspiracy calls for a specific intent, the lottery statute does not. (228 C.A.2d 83, 84.) In People v. Firestine (1968) 268 C.A.2d 533, 74 C.R. 168, the general statute, former B. & P.C. 4390 (now B. & P.C. 4324), prohibited making a false prescription for drugs. The special statute, former B. & P.C. 4390.5 (now B. & P.C. 4323), made it unlawful for a person to falsely represent himself or herself to be authorized to prescribe drugs. Held, the general statute was applicable: (a) The crime under B. & P.C. 4390.5 is complete when the false representation is made; actual order of a false oral prescription is not required. (b) B. & P.C. 4390 prohibits forgery of a drug prescription, and makes it unlawful to possess drugs obtained by that prescription; neither is covered by B. & P.C. 4390.5. (228 C.A.2d 540.) In People v. Weltsch (1978) 84 C.A.3d 959, 149 C.R. 112, defendant attempted to sell a falsely labeled perfume as the expensive brand he represented it to be. He was charged with attempted grand theft by false pretenses (P.C. 484, 487), but contended that the conduct was covered by P.C. 351a (false representation of goods as product of particular producer). Held, the charge was proper; reliance on the false promises was required by the theft statute but not by the false representation statute. (84 C.A.3d 963, 964.) A number of other decisions are illustrative: People v. Watson (1981) 30 C.3d 290, 295, 179 C.R. 43, 637 P.2d 279 [P.C. 187 et seq. (general murder statute) requires malice; P.C. 192 (vehicular manslaughter statute) does not]. People v. Coronado (1995) 12 C.4th 145, 154, 48 C.R.2d 77, 906 P.2d 1232 [because elements are different, former Veh.C. 23175 (now Veh.C. 23550; felony punishment based on conviction of driving under the influence) does not preclude enhancement under P.C. 667.5(b) (prior prison term)]. People v. Hathaway (1972) 27 C.A.3d 586, 591, 103 C.R. 638 [prosecution of fraudulent welfare claim is permissible under either P.C. 72 or Welf.C. 14107]. People v. Randono (1973) 32 C.A.3d 164, 178, 108 C.R. 326 [P.C. 484 (general theft) is not preempted by P.C. 154 (fraudulent concealment of property from creditors)]. People v. Barrowclough (1974) 39 C.A.3d 50, 55, 113 C.R. 852 [Veh.C. 20 (prohibiting false statements in document filed with Department of Motor Vehicles) does not conflict with P.C. 118 (prohibiting false statements only when made under oath or penalty of perjury)]. People v. Cohen (1976) 59 C.A.3d 241, 247, 130 C.R. 656 [P.C. 487 (theft) is not supplanted by former Educ.C. 28802 (now Educ.C. 19911; wilful detention of library book)]. People v. Robertson (1990) 223 C.A.3d 1277, 1281, 1282, 273 C.R. 209, 2 Cal. Crim. Law (4th), Crimes Against Property, § 202 [P.C. 529(3) (now P.C. 529(a)(3); false personation) has three elements not included in P.C. 148.9(a) (falsely identifying oneself to peace officer)]. People v. Vasquez (1991) 226 C.A.3d 988, 994, 277 C.R. 256 [P.C. 207 (kidnaping) requires forcible taking; P.C. 265 (abduction for marriage or defilement) does not]. People v. O'Connor (1992) 8 C.A.4th 941, 946, 10 C.R. 530 [P.C. 288(a) (lewd conduct with child) includes elements not included in P.C. 311.4(c) (using minor in production of pornography)]. People v. Sanchez (1994) 27 C.A.4th 918, 923, 33 C.R.2d 155, 2 Cal. Crim. Law (4th), Crimes Against Public Peace and Welfare, § 132 [because of differences in knowledge and intent elements, Health & Saf.C. 11366.5 (providing place for manufacture or storage of controlled substance) does not preclude conviction under Health & Saf.C. 11379.6 (aiding and abetting manufacture of controlled substance)]. People v. Arndt (1999) 76 C.A.4th 387, 392, 90 C.R.2d 415 [because elements are different, enhancement under former Veh.C. 23182 (now Veh.C. 23558; bodily injury to multiple victims) does not preclude enhancement under P.C. 12022.7 (great bodily injury in commission of felony)]. People v. Chardon (1999) 77 C.A.4th 205, 213, 91 C.R.2d 438 [because elements are different, Veh.C. 40504(b) (signing citation with false or fictitious name) did not preclude prosecution under P.C. 529(3) (false personation)]. People v. Powers (2004) 117 C.A.4th 291, 298, 11 C.R.3d 619 [prosecution for violation of Department of Fish and Game regulation (filing inaccurate fishing activity report; misdemeanor) did not preclude prosecution under P.C. 115 (offering false instrument for filing; felony); general statute has scienter element not required by special regulation]. SUPPLEMENT (1) In General. In People v. Brown (2016) 6 C.A.5th 1074, 1080, 212 C.R.3d 187, the court rejected defendant's argument that P.C. 137 (inducing false testimony or information) was a special statute controlling P.C. 136.1 (intimidating witness). A violation of P.C. 137 does not necessarily or commonly constitute a violation of P.C. 136.1. (a) Under P.C. 136.1, the prevention of prosecution must occur before the charging document has been filed, while under P.C. 137, inducing falsehood can occur up to and including during the trial. (b) Under P.C. 136.1, the victim must be so central to the case as to be able to cause the filing, while under P.C. 137, the victim may be anyone with material information about a crime. (c) P.C. 136.1 applies only to attempts to exculpate the accused, while P.C. 137 applies to attempts to falsely implicate as well as to falsely exculpate the accused. (6 C.A.5th 1082.) See People v. McCall (2013) 214 C.A.4th 1006, 1015, 154 C.R.3d 471 [unlicensed student midwife was subject to felony prosecution under general statute (unlicensed practice of medicine; B. & P.C. 2052(a)) rather than misdemeanor prosecution under special statute (violation of Midwifery Act; B. & P.C. 2514); elements of two statutes do not correspond and defendant's conduct amounted to practice of medicine, not merely to unsupervised practice of midwife services]; People v. Rader (2014) 228 C.A.4th 184, 192, 193, 199, 175 C.R.3d 65 [because there is no conflict between elements, punishment, or statute of limitations for petty theft under P.C. 484(a) and misdemeanor of defrauding an innkeeper under P.C. 537(a), defendant who paid for restaurant meal with counterfeit bills could be charged under either statute, even though petty theft may be elevated to felony because of prior conviction; disagreeing with People v. Fiene (1964) 226 C.A.2d 305, 37 C.R. 925, text, § 76]. As amended in 2015, P.C. 405a, cited in the text, p. 136, no longer uses the term “lynching” to describe the conduct prohibited by the statute. Illustrations: People v. Webb (2017) 13 C.A.5th 486, 492, 220 C.R.3d 679 [violation of P.C. 148.9 (false representation of identity to peace officer) would not necessarily or commonly result in violation of P.C. 530.5 (identity theft) which requires proof that defendant obtained and used personal identification information without consent]. In re Charles G. (2017) 14 C.A.5th 945, 949, 223 C.R.3d 350 [violation of P.C. 29610, which prohibits minor from possessing firearm capable of being concealed, but does not require actual concealment, is not necessarily or commonly violation of P.C. 25400(a)(2), which prohibits carrying concealed weapons]. People v. Mullins (2018) 19 C.A.5th 594, 607, 608, 228 C.R.3d 198 [violation of P.C. 530.5 (identity theft) does not commonly result in violation of P.C. 211 (robbery), which requires proof that force or fear was used; defendants' argument also failed under additional element test for same reason]. People v. Lucero (2019) 41 C.A.5th 370, 408, 409, 254 C.R.3d 233 [punishment under P.C. 134 (preparing false documentary evidence) was not more severe than punishment under P.C. 118 (perjury); prosecution under P.C. 134 was proper]. People v. Harper (2020) 44 C.A.5th 172, 186, 188, 190, 257 C.R.3d 440 [violation of statute prohibiting taking another for purpose of prostitution would not commonly result in violation of kidnapping statute or kidnapping for extortion statute; conviction under kidnapping statutes was proper]. People v. Lyon (2021) 61 C.A.5th 237, 257, 275 C.R.3d 581 [violation of statute prohibiting use of concealed camera to record someone in state of undress without consent would not commonly result in violation of statute prohibiting the use of electronic amplifying or recording devices to eavesdrop; conviction under latter statute was proper]. (2) Where General Statute Has Additional Element. See People v. Henry (2018) 28 C.A.5th 786, 794, 239 C.R.3d 483 [noting that People v. Chardon (1999) 77 C.A.4th 205, 91 C.R.2d 438, text, p. 138, was implicitly overruled by People v. Murphy (2011) 52 C.4th 81, 127 C.R.3d 78, 253 P.3d 1216, text, § 76]. Additional illustrative cases include the following: People v. Villagran (2016) 5 C.A.5th 880, 894, 210 C.R.3d 426, 2 Cal. Crim. Law (4th), Sex Offenses and Crimes Against Decency, Supp., § 43 [general statute P.C. 288(a) (lewd and lascivious acts with child under age 14) requires actual or constructive touching; special statute P.C. 288.3 (contact with minor with intent to commit sexual offense) does not; distinguishing In re Williamson (1954) 43 C.2d 651, 276 P.2d 593, text, § 76]. People v. Montalvo (2019) 36 C.A.5th 597, 621, 623, 248 C.R.3d 708 [defendant, pretending to be police officer, took property from victims; P.C. 530 (theft by false personation) and P.C. 532 (theft by false pretenses) are not more specific statutes than P.C. 211 (robbery); defendant did not “receive” property, but instead took it, and defendant did not commit violation of either false personation or false pretenses].