Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law. But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v. Murphy, case no. E046742 ( 4th Dist. Dec. 28, 2009):
Defendant contends the Legislature enacted misdemeanor statutes, which more specifically defined the felony offense for which she was convicted in count 1, subsequent to the latter’s enactment; thus, she asserts her felony conviction is preempted and must be reversed.
Specifically, the defendant contended that her conviction for procuring or offering false information for filing in a pubic office (Pen. Code, § 115, subd. (a)), with which she was charged for submitting a false stolen vehicle report to the California Highway Patrol, was preempted by Vehicle Code section 20 (false statement or knowing concealment of any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol) and Vehicle Code section 10501 (filing of false or fraudulent report of theft of a vehicle with any law enforcement agency with intent to deceive). At first glance, it looks like a pretty good argument, but it doesn’t withstand the preemption test.
“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.] To determine the applicability of this doctrine in a particular case, the courts have developed two alternative tests. Under these tests, a prosecution under the general statute is prohibited if: (1) “each element of the general statute corresponds to an element on the face of the [specific] statute‟; or (2) “it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute.‟ [Citations.]” (People v. Jones (2003) 108 Cal.App.4th 455, 463.)
“Consideration must be given to the entire context surrounding the “special‟ statute to determine the true overlap of the statutes and to ascertain the intent of the Legislature.” (People v. Jenkins (1980) 28 Cal.3d 494, 503.) “The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and „requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision. . . .‟ [Citation.]” (Id. at pp. 505-506.)
What’s interesting about the court’s reasoning in concluding that the Penal Code provision is not preempted is that the elements that differentiate the Vehicle Code misdemeanor provisions from the Penal Code felony provision (and thus prevent preemption) arguably make the misdemeanors harder to prove and more serious than the felony offense. Both of the Vehicle Code provisions require filing a document, whereas the Penal Code provision only requires that the defendant “procure” or “offer” it. The nature of the falsehood in the misdemeanor statutes also seems more serious and harder to prove than the falsehood in the Penal Code provision. Vehicle Code section 20 requires the false statement to be material, and Vehicle Code section 10501 requires that the false statement be made with intent to deceive; yet, neither materiality nor intent to deceive is an element of Penal Code section 115, subdivision (a).
The answer to this curious state of affairs appears to be the in the court’s exlpanation of the purpose of Penal Code section 115:
As the People note, Vehicle Code section 10501’s lack of a requirement that the false report, if genuine, could have been legally filed provides a legally decisive distinction reflecting the Legislature‟s intent, pursuant to Penal Code section 115, to protect recordation of documents in public institutions and the public’s reliance upon them, a concern not apparent in Vehicle Code section 10501. Additionally, as noted above in the discussion of Vehicle Code section 20, Penal Code section 115’s prohibition on knowingly procuring or offering false instruments to be filed is legally distinct from Vehicle Code section 10501’s prohibition on making false statements or actually filing a false report of vehicle theft. This is because an offense under Penal Code section 115 is more egregious because it inherently induces the conduct and reliance of others in its commission.
Similarly, a violation of Vehicle Code section 10501 will not necessarily, or even commonly, result in a violation of Penal Code section 115 because the former is concerned with the filing of the false or fraudulent report by the reporter himself or herself; thus, it lacks the more morally turpitudinous act of inducing behavior by another.
The court seems to be saying that the purpose of Penal Code section 115 — to prevent reliance by the public on falsified instruments — is served by imposing criminal liability just for getting a false document even close to filing, regardless of intent. In other words, people need to be darn careful about what they offer for filing to public agencies.
I get that, in the abstract. And, I agree that the technical test for preemption is not met in the case. It seems odd, however, that the practical result of applying the preemption test should lead to this result. The fact of the matter is that the defendant filed a false report of vehicle theft with the highway patrol, which the legislature deemed less punishable than the conduct proscribed by the more general felony statute. What purpose does Vehicle Code section 10501 serve if not to make less culpable those persons who file a particular false document that is not likely to be relied upon by the public?