CASE ALERT: Clarity in New Ruling on Dissuading a Victim Access to a Phone

By Ray Hill
Professor emeritus, Santa Rosa Junior College

Ruling

Defendant’s Act of Turning Off a Victim’s Cell Phone and Denying Her Access Supports a Conviction for Preventing or Dissuading a Victim from Reporting a Crime (136.1(b)(1) P.C.) (Peo. v. Sherman (2022) 2022 WL 17726696; 2022 Cal App. Lexis 1022).

Case Background

Victim was visiting the United States from Mexico for the first time. Defendant posed as an Uber driver and picked up the victim. (He had previously worked for Uber and Lyft and the company decals were still on his car windows.) He drove victim to a remote location, parked and lunged into the back seat, held the victim down, pulled down her pants and underwear, and attempted to rape her. Defendant’s DNA was found on the victim’s underwear. During the attack, the victim was able to gain possession of her cell phone. Defendant grabbed the phone, turned it off, said “I’m not going to let you have it” and put it aside. When the victim told the defendant she was pregnant, he returned to the front seat, drove to another location, stopped the car and dropped the victim off.

Defendant was convicted of kidnapping, assault with force likely to produce great bodily injury and dissuading the victim from reporting the crime. He was sentenced to 11 years in CDC&R. Defendant argued on appeal that the statutory interpretation of 136.1(b) (1) P.C. applies only to crimes that have already occurred, not to crimes in progress.

Appellate Court Decision

The First District Court of Appeals ruled that 136.1(b)(1) applies to attempts to prevent a victim/witness from seeking assistance during an ongoing crime, not just attempts to dissuade a report of a past crime. The statute should be broadly interpreted to apply to preventing communication for assistance during an ongoing course of criminal conduct, the ruling ....

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