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People v. Webb

California Court of Appeals, First District, Third Division

July 12, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
DAVID DONALD WEBB, Defendant and Appellant.

         Contra Costa County Super. Ct. No. 5-151712-7 Honorable Diana Becton Judge.

          Counsel for plaintiff and respondent: Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, and Dorian Jung, Deputy Attorney General, for Plaintiff and Respondent.

          Counsel defendant and appellant: Alex Green

          Pollak, J.

         Defendant David Donald Webb appeals from a judgment convicting him of, among other things, driving a vehicle without consent, possession for sale of methamphetamine, and identity theft. He contends his trial attorney provided ineffective assistance by failing to move to dismiss the identity theft charge under the so-called Williamson[1]rule. Defendant also contends that the court erred in imposing penalty assessments on fees imposed under the Health and Safety Code and in requiring him to pay $500 in attorney fees. We reject defendant's claim of ineffective assistance of counsel but conclude that the matter must be remanded to recalculate the fees excluding the penalty assessments and to determine defendant's financial ability to pay attorney fees.

         Factual and Procedural History

         Defendant was charged by amended information with driving or taking a vehicle without consent after a prior conviction (Veh. Code, § 10851; Pen. Code, [2] § 666.5 [count 1]), identity theft (§ 530.5, subd. (a) [count 2]), possession for sale of methamphetamine (Health & Saf. Code, § 11378 [count 3]), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) [count 4]), and misdemeanor receiving stolen property of a value not exceeding $950 (§ 496, subd. (a) [count 5]). The information also alleged that defendant had two prior convictions for which he served a prison term (§ 667.5, subd. (b)).

         Because defendant does not challenge the sufficiency of the evidence in support of his convictions, a detailed summary of the trial evidence is unnecessary. We set forth only a summary of basic facts to provide context for the discussion that follows.

         A police officer testified that on August 31, 2015, at approximately 3:00 p.m., he received notification that a stolen vehicle was traveling in a nearby area. He drove to the area where he located the stolen car parked with defendant sitting in the driver's seat. The officer observed defendant exit the car and walk behind a set of parked cars. When the officer then detained defendant, he refused to identify himself but stated that he had an identification card in his pants pocket. The officer retrieved a California driver's license from defendant's pocket. Defendant “didn't necessarily look like the same person” as depicted on the license. The officer confronted defendant and asked for his real name and defendant responded that his name is David Donald Webb.

         After arresting defendant, the officer walked the route that defendant had taken after exiting the stolen car and recovered from beside the parked cars a small box containing 2.129 grams of methamphetamine and a small electronic scale. Video from the citywide surveillance system showed defendant dropping the box out of his pocket as he walked behind the parked cars. During defendant's booking search following his arrest, the officer found in defendant's pocket six personal bank checks in the name of other individuals, intermingled with other personal items. The officer also recovered from defendant two cell phones, one of which contained text messages and emails relating to drug transactions. Finally, a search of defendant's home uncovered additional methamphetamine and indicia of drug sales.

         The jury found defendant guilty as charged and the court found the enhancement allegation to be true. The court denied probation and imposed a five-year sentence consisting of two years in county jail and three years of mandatory supervision. The court imposed, among other fees, a $190 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), a $570 drug program fee (Health & Saf. Code, § 11372.7) and attorney fees of $500.

         Defendant timely filed a notice of appeal.

         Discussion

         1. The Williamson Rule

         “Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended 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 that otherwise could be prosecuted under either statute. [Citation.]... [¶] Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) ‘each element of the general 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.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute.... [¶] On the other hand, if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely.... [¶] However, that the general statute contains an element not within the special statute does not necessarily mean that the Williamson rule does not apply. ‘It is not correct to assume that the [Williamson] rule is inapplicable whenever the general statute contains an element not found within the four corners of the “special” law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the “special” statute will necessarily or commonly result in a violation of the “general” statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.' ” (People v. Murphy (2011) 52 Cal.4th 81, 86-87.)

         Defendant contends that his trial attorney provided ineffective assistance in failing to move to dismiss the felony identity theft charge under section 530.5 on the ground that the Williamson rule permitted prosecution for his conduct of only misdemeanors under either section 148.9 (false representation of identity to ...


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