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Vacated: Threat of Self-Harm Does Not Constitute Harm to 3rd Person

People v. Johnson Docket: A160025 (First Appellate District), Opinion Date: June 17, 2022. Johnson was convicted of multiple offenses arising from a domestic violence incident against his wife in the presence of their daughters, including two separate counts of dissuading a witness by force or threat of force or violence under Penal Code section 136.1(c)(1). His count 5 conviction was based on a statement Johnson made to his family that if the police came, he would blow his brains out. His count 2 conviction was based on a separate statement Johnson made to his wife that if she called the police, they would both be dead before the police arrived. The court of appeal vacated in part. As to his count 5 conviction, there was insufficient evidence; Johnson’s threat of self-harm did not constitute substantial evidence of harm to any “witness or victim or any third person,” under section 136.1(c)(1). A defendant who threatens violence upon himself does not threaten a “third person.” As to his count 2 conviction, Johnson forfeited his argument that the court committed an instructional error by incorrectly stating the law under section 136.1(c)(1); his substantial rights were not affected. Johnson’s count 2 conviction was improperly classified on his abstract of judgment as a violent felony. Any unpaid balance of the booking fee imposed on Johnson must be vacated based on recent legislation.

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