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Name: People v. McElroy
Case #: C044996
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/10/2005
Subsequent History: Revw den. 5/18/05
Summary

The offense described under Penal Code section 136.1, subdivision (b)(1), is a wobbler, and defendant was appropriately convicted of a felony under that section. The defendant had argued on appeal that his conviction for dissuading a witness should be reduced to a misdemeanor because the jury was not instructed on the element of “force or fear” under subdivision (c)(1) of that statute, which according to the defendant was required for a felony conviction. The court disagreed, noting that subdivision (b)(1) does not include that element but constitutes a wobbler because it authorizes a prison sentence as punishment under that subdivision. The court further found that sufficient evidence supported defendant’s conviction for obstructing or removing a telephone under section 591, even though the telephone belonged to the defendant and he had merely unplugged and removed it to prevent the victim from using it. The court declined to reach the defendant’s argument regarding the failure to instruct the jury on the meaning of the word “unlawfully” in section 591 because the argument was not raised in a separate point heading. Finally, the court found that a parole fine under Penal Code section 1202.45 properly matched the total restitution fine imposed under section 1202.4, even though part of the 1202.4 fine was based on misdemeanor counts.