Conviction for Dissuading Witness for Gang Benefit Reversed
The enhancements charged were based on allegations that Lopez committed the offenses for the benefit of a criminal street gang, had two prior convictions for a strike offense, had two prior terms of imprisonment and that he committed the crimes while on bail for another offense (Penal Code § 12022.1).Synopsis: Seven years to life sentence for dissuading a witness for benefit of a gang reversed because no force threatened.
After his convictions, Mr. Lopez appealed the verdict and sentencing on multiple grounds, each of which are fairly complex and involve a lengthy discussion.
The comment was clearly made in the context of Lopez being angry that Gonzalez was there and about to testify against him, possibly leading to Lopez being convicted on many charges and serving time in prison. As Lopez was being charged with murder, his anger was not something to disregard because were he to be found not guilty, Gonzalez would have good reason to fear retaliation by Lopez.
At the time, it was known that Gonzalez was about to testify against Lopez and it was anticipated that Gonzalez’s testimony would be decisive against Lopez. Lopez was free on bail at the time.
Lopez also said, “Snitches, you shouldn’t be here.” The prosecution argued that the comment was made in an attempt to encourage Gonzalez to leave or dissuade Gonzalez from testifying. The prosecution further argued that because Lopez was a member of the Norteños gang, Lopez’s comment was meant to threaten physical harm on Gonzalez because such gangs often beat up “snitches.”
The jury agreed and convicted Lopez of violating Penal Code § 136.1(a)(2) (attempting to dissuade a witness). Lopez appealed, arguing, that the evidence was insufficient to find him guilty because he did not accompany his comment by force or by an express of implied threat of force, as is required under subsection (c) of the Penal Code § 136.1.
In other words, Lopez was not convicted of violating Penal Code § 136.1(c)(1), which is the only subsection under dissuading a witness that could lead to the sentence imposed. The jury was also not even asked to find whether Lopez used an implied or express threat of force.
Consequently, the appellate court found that the trial court erred in imposing the seven years to life sentence. This portion of the sentence was thus vacated and the case was remanded (sent back down) to the trial court for sentencing on this count.
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