1

Filed 8/20/15 P. v. Shami m CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. MOHAMMED SHAMIM, Defendant and Appellant. A140695
(San Mateo County Super. Ct. No. SC079113)

I.
INTRODUCTION A jury found appellant Mohammed Shamim guilty of vehicular flight from police
and of making a false crime report. On appeal a ppellant challenges only his conviction for making a fa lse crime report under Penal Code section 148.5, subdivision (a). He
contends that the statute violates his First Amendment rights, and that his conviction under the false crime report statute is pre empted by a special statute in the V ehicle Code that pe n alizes filing a false report relating to the theft of a vehicle. We conclude that appellant’s First Amendment claim has been forfeited
, and that his prosecution under the
Penal Code for making a false report was not precluded by the Vehicle Code

. Accordi ngly, w e affirm.
II.

FACTUAL AND PROCEDUR AL BACKGROUNDS The San Mateo District Attorney’s Office filed a two

- count complaint charging appellant with one felony count of driving in willful and wanton disregard of public2

safety while fleeing from police in violation of Vehicle Code section 2800.2 , and one
misdemeanor count of making a false crime report to a peace officer in violation of Penal
Code sectio n 148.5, subdivision (a) (1) . The complaint alleged three prior convictions and a prior prison term as en hancement s

. The case was tried to a jury wh ich convicted appellant on both counts. The court found the priors to be true and sentenced appellant to four years in state prison on count one , and to time

- served on count two. At trial, t he primary witness w as South San Francisco Police Officer Henry Velez.
Velez testified he was on duty driving a marked poli ce car when he saw a white mini van without it s headlights on make a wide left turn. As the car passed him, he saw the driver
who he identified as a B la ck male wearing a black faded long

- sleeved t

- shirt. The driver appeared to have something on his head that he t hought was a ball cap or a beanie

. The van was swerving , running red lights
, and increased its speed to 80 miles per hour in a
40

- mile

- per

- hour zone. Officer Velez activated his lights and siren but t he van did not pull over

. The van merged onto the freeway and after continuing the chase for a period of time, the pursuit was calle d off to protect public safety.
A little more than a half hour l ater when Officer Velez was at the police station, he
heard that an individual was a t the front desk to report the white van had been stolen. He

went to t he desk to take the report and recognized appellant as the driver of the van from
earli er in the evening. Officer Velez testified that he recognized appellant’s face, his long

- sleeved black shirt and he was wearing “traditional head we ar for Muslims.”
Officer Velez took appellant to an interview room and read him his Miranda 1 rights. Appe llant told Officer Velez he had been at the mosque between 5:00 p

. m. and midnight
and whil e h e was there the white van had been stolen . Appellant was arre sted for the vehicular pursuit. After appellant was arrested, Officer Velez cont inued to look for th e van for a week until he saw it parked outside of appellant’s father’s home.

1 Miranda v. Arizona (1966) 384 U.S. 436.3 III.
DISCUSSION
A. Appellant’s First Amendment Claim is Forfeited Penal Code section 148.5, subdivision (a) states: “ Every person who reports to any peace officer

. . . , the Attorney General, or a deputy attorney general, or a district attorney, or a deputy district attorney that a felony or misdemeanor has been committed, knowing the report to be false, is guilty of a misdemeanor. ” ( Pen. Code, § 148.5 , subd. (a).) Appellant argues for the first time on appeal that Penal Code section 148.5 violates
the First Amendment of the federal C onstitution because it restricts speech based on its

content , namely speech that is false

. Respo n dent contend s that appellant has forfeited
thi s claim because he cannot raise the free speech clai m for the first time on appeal.

“ ‘ “ [N] o procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as
civ il cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. ” ’ [Citations.] ” ( In re Sheena K. (2007) 40 Cal.4th 875,
880

- 8 8 1 ( Sheena K. ) , quoting United States v. Olano (1993) 507 U. S. 725, 731 ; People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [rejecting First Amendment c laim as forfeited
where appellant did not raise it below ]

. ) “Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that cou rt has forfeited his or her right to raise the claim on appeal. [Citations.] ” ( Sheena K.
, at p. 880.)

“ Additionally, ‘ [i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, c ould have been easily corrected or
avoided.

. . . ” ( People v. McCullough (2013) 56 Cal.4th 589, 593
, quoting People v. Vera (1997) 15 Cal.4th 269, 276.) Ap pellant argues in his reply brief that we should consider his First Amendment
claim because it is a facial challenge to the validity of the statute
, and therefore raises a purely legal issue. We disagree that his claim raise s only a pure question of law. Even

a ppellant’s own argument makes a fact

- based analysis , including the circumstances4

surrounding appellant’s statement and those facts relating to his knowledge that the
statement to law enforcement was false

. Neither the jury nor the trial court was given the opportunity to address these
contentions or to make these or other factual fin dings relating to the claim that the statute
is unconstitutional

. ( In re Curtis S. (2013) 215 Cal.App.4th 758, 761

- 7 62 [rejecting claim raised for first time on appeal because it requires a fact

- based analysis to determine whether the speech was predomina ntly communicative, or whether it presented a clear and present danger of imminent violence and was a guise for disruption ].) T herefore, we conclude appellant’s claim has been forfeited on appeal because he failed to raise it
be low

. 2

B. Appellant’s Prose cution Under the Penal Code Was Not Precluded by Vehicle Code Section 10501 , subdivision (a) Appellant alternatively contends that prosecution under Penal Code section 148.5 is pre empted by a more specific statute in the Vehicle Code. Vehicle Code section 10501, subdivision (a) (section 10501(a)) states: “ It is unlawful for any person to make or file a false or fraudulent report of theft of a vehicle required to be registered under this code with any law enforcement agency with intent to deceive. ” Appellant argues that because section 10501(a) is more specific than the broader prohibition in Penal Code section 148.5, the Legislature intended that prosecution for an alleged false report be
under section 105 01 (a), and not under Penal Code section 148. 5. Appellant’s challenge is based upon the rule derived from In re Williamson (1954) 43 Cal.2d 651, 654 ( Williamson ). “ Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature
i ntended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct

2 If not forfeited we would conclude that Penal Code section 148.5, either facially or as applied to appellant, was not an unconstitutional infringement on his First Amendment right of free speech. ( People v. Stanistreet (2002) 29 Cal.4th 497, 510.) The United States Supreme Court decision in United States v. Alvarez (2012) ___ U.S. ___, 132 S.Ct. 2537, 183 L.Ed.2d 574 relied on by appellant, does not command otherwise.5

that otherwise could be prosecuted under either statute. [Citation.] ” ( People v. Murphy (2011) 52 Cal.4th 81, 86 ( Murphy ).) The rule is not mandated by statute or the
constitution
, but serves to carry out legislative intent when two statutes conflict. ( Ibid. )
T he Williamson rule applies when ( 1) “each element of the gener al statute corresponds to an element on the face of the special statute
, ” or (2) when “it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. [Citation.] ” ( People v. Watson (1981) 30 Cal.3d 290, 295

– 296 .) In other words, t he rule is triggered when a violation of the special statute would “inevitably constitute a violation of the general statute.” ( Murphy
, supra , 52 Cal.4th at p. 86.) If, however, the more general statute contains an element not contained in the special statute, we do not assume the Legislature intended to preclude prosecution under the general statute. ( Id. at p. 87.)
In Murphy
, a deputy sheriff came to Murphy’s house after discovering he r car crashed into a hillside. Murphy told the deputy sheriff that her car had been stolen. ( 52 Cal.4th at p. 84.) Murphy was convicted of a felony violation of Penal Code section 115
, subdivision (a), which prohibits knowingly offering a false or forge d instrument to be filed, registered or recorded with a public office
, because she completed a stolen vehicle report under penalty of perjury. ( Id. at pp. 84, 88.) She argued that she should have been prosecuted under Vehicle Code section 10501 , subdivis ion (a) for the misdemeanor of filing a false report of vehicle theft. ( I d. at p. 84. ) The c ourt held that Penal Code section
115 is “more general” than Vehicle C ode section 10501 because it applies to a broader range of documents and each element of section 10501 has a counterpart in Penal Code
section 115. ( Id. at p. 88.) The court concluded that the filing of a false vehicle theft report would commonly violate Penal Code section 115. ( Id. at p. 94.) Here, while t here is an overlap between the conduct proscribed in the two sections
, each element does not have a counterpart as in Murphy

— failing the first prong of the
Williamson test

. First, section 10501 (a) ma kes it a misdemeanor to file a fraudulent report to any law enforcement agency. Penal Code section 148.5 makes it a misdemeanor to report that a crime has been committed to specific law enforcement personnel : a peace6

officer, district attorney
, attorney g eneral
, or their deputies

. The Vehicle Code section does not require contact with a peace officer , district attorney or attorney general as is
mandated by the Penal Code. Making a report to “any law enforcement agency” could include agency administrators , clerks and other staff. Also, the Williamson rule does not apply where there is “some indication of legislative intent to the contrary.” ( Murphy
, supra , 52 Cal.4th at p. 86; In re Fernando C. (2014) 227 Cal.App.4th 499, 507 .) Penal Code section 148.5 seeks specifically to avoid the burden on law enforcement officers and prosecutors in investigating false claims and
the waste of law enforcement resources. ( People v. Lawson (1979) 100 Cal.App.3d 60,
67 [ the damage which section 148.5 seeks to avoid includes waste of law enforcement time and money ].) “ A common sense reading of [section 148.5]

. . . suggests that the section is intended to deter false reports of crimes and the resulting inconvenience and danger to other members of the public

. . . . [Citation.] This interpretation is supported by the fact Penal Code section 148.5 is one in a series of sections designed to prevent false reports to those responsible for police and fire protection and other emergency
services. [Cit ations.] ” ( Pena v. Municipal Court (1979) 9 6 Cal.App.3d 77, 82 .) Thus,

t he requirement that an individual have direct contact with a peace officer, district attorney, attorney general or their deputies serves a different legislative purpose than the
Vehi cle Code’s prohibition of making false claims to “any law enforcement agency

. ” (§ 10501(a).) Furthermore, the Penal Code makes it a misdemeanor to file a report “knowing the report to be false” (Pen. Code, § 148.5, subd. (a)), whereas the Vehicle Code requires the false report be made “with intent to deceive” (§ 10501(a)). The scienter requirement in
the Vehicle Code is more stringent than the Penal Code’s requirement. ( E.g., People v.
Booth (1996) 48 Cal.App.4th 1247, 1253 [ “[T ] he element of ‘ s pecific intent to defraud ’

. . . is more rigorous than the concept of ‘knowingly’ and includes the latter.” ( Pen. Code, § 7 [“ 5. T he word ‘ knowingly ’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of th is code. It does not require any knowledge of the unlawfulness of such act or omission. ]; People v. Lawson (1979) 1007

Cal.App.3d 60, 68 [ Pen

. Code
, § 148.5 “ prohibits only knowing falsehoods. This requirement of scienter protects witnesses who honestly m isperceive facts. ” ].) Finally, unlike Murphy , appellant was not prosecuted under a general statute that imposed a more severe penalty or was more onerous than the special statute

. ( In re
Fernando C
., supra , 2 27 Cal.App.4th at p. 5 07 .) Both sections make the conduct at issue
here a misdemeanor. We also agree with respondent that the Williamson rule does not apply where the general and special statutes are not in conflict. ( People v. Rader (2014) 228 Cal.App.4th 184 ( Rader ) .) “[T] he W illiamson decision requires there be a conflict between the two provisions before the general and specific statutes jurisprudence can limit prosecutorial charging discretion. ” ( Id. at p. 198 ; see also People v. Artis (1993) 20 Cal.App.4th 1024, 1027 [ Will iamson rule does not apply where “ there are no conflicts between the elements to prove, or the punishment for ” the general and special statutes ].)
In Rad e r , the defendant paid for his meal at a restaurant with counterfeit bills. ( 228 Cal.App.4th at p. 186.) He was charged with petty theft under Penal Code section 484, but argued on appeal he should have been prosecuted under Penal Code section 537 for defrauding an innkeeper. ( Id. at p. 192.) Both statutes permit conviction for defrauding a person fo r food and both have the same potential punishment. ( Id. at
p. 193.) “ There is no conflict in the elements, punishment or statutes of limitations. Hence, as there is no conflict between the petty theft statute and section 537,
subdivision (a), the Willi amson rule is inapplicable. [Citations.] ” ( Id. at p. 199 .) Therefore, even if we were to accept appellant’s argument that the statutes do, in fact, cover the same conduct, a proposition we have rejected, under Rader that there is no
conflict because the y both relate to the same subject generally and both impose the same potential punishment. Turning to the second test of the Williamson rule, we cannot conclude that a
violation of section 10501 (a) will necessarily or commonly result in a violation of Pen al
Code section 148.5 . Here , in making a false report to Officer Velez, appellant’s conduct went beyond that required for a violation of the Vehicle Code. Section 10501 (a) is violated whenever a false claim concerning a vehicle subject to registration is reported to8

a agency specified by the statute. Appellant reported to a peace officer that his father’ s car was stolen
, causing the officer to waste time and law enforcement resources in investigat ing the report for a week. Appellant’s apparent purpose in making the report

was to deceive Officer Velez by deflect ing suspicion from himself as having engaged in a high speed chase with police

. That deception, which furthered his attempt to avoid responsibility for dangerous high speed evasion on public roads, is not required or common to a violation of the Vehicle Code. Therefore, while a ppellant’s conduct here may have constituted a violation of the Vehicle Code
, it also did more than that. ( People
v. McCall (2013) 214 Cal.App .4th 1006, 1016 [ “ Defendant may have committed a misdemeanor violation of the Midwifery Act by performing midwife services without the required supervision of a licensed midwife or a physician and surgeon. But she did a great deal more than that. Her con duct above and beyond the failure to secure supervision constituted, as the jury found, practicing medicine without certification, a felony violation of the general statute

. ” ].) Therefore, for all of the foregoing reasons w e conclude that section 10501 (a) does not preclude appellant’s prosecution for a misdemeanor violation of Penal Code section 148.5, subdivision (a).
IV.
DISPOSITION The judgment is affirmed.9 _________________________ RUVOLO, P. J.

We concur:

_________________________ RIVERA, J.

_________________________ STREETER, J.