Filed 2/8/16 P. v. Hamilton CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                         B257028

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. Nos. NA096378/NA098533)
v.

ERIC DEWAYNE HAMILTON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J.
Ferrari, Judge. Affirmed.
         Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and David Zarmi,
Deputy Attorneys General for Plaintiff and Respondent.



                                         ______________________________
       Appellant Eric Dewayne Hamilton appeals from the judgment entered after his
jury conviction of one count of witness intimidation under Penal Code section 136.1,
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subdivision (a)(2). He seeks reversal on the ground the evidence does not support a
finding that he attempted to dissuade the victim from attending or giving testimony, as
required by section 136.1, subdivision (a)(2). We find there is substantial evidence to
support the conviction and affirm the judgment.


                         FACTUAL AND PROCEDURAL SUMMARY
       Kimberly C., a witness for the People, testified at a preliminary hearing on August
7, 2013, that on July 22, 2013, Hamilton came into her house through the window,
attempted to choke her, and then lit her son’s t-shirt on fire and threw it at her. After the
preliminary hearing, the court issued a protective order prohibiting Hamilton from
contacting Kimberly. On August 21, 2013, Hamilton was charged with arson (§ 451,
subd. (d)) and battery (§ 242). On September 2, 2013, Hamilton left a voice message on
Kimberly’s phone. The transcript of the phone recording states:
       Kim baby, please um, let me start calling you, I’m scared to call you girl,
       they say I’m facing 11 years, you my fuckin’ wife, what the fuck is this
       shit, we get into one little incident and you flap on me and you know my
       momma ‘bout to die, I’m fuckin’ callin’ [] and everybody to contact you, I
       will give you money,and I know I ain’t supposed to be saying this shit, you
       could fuck me over in court right now just by saying this shit, baby please
       don’t fuckin’ do me like this, you feel me, come get this shit up off of me, I
       need a visit from you, I fuckin’ got callin’ card, I’m scared to spend, my
       family love you and man we suppose to get marry, what the fuck is this,
       Kim, baby please don’t go out like this, I swear the fuckin’ god on my life,
       you want me to stay away from you, I’ll stay the fuck away from you, you
       know 11 years, Kim, get it off of me 32 months, but 11 fuckin’ years,
       everybody in my whole family got your address, I don’t even know if your
       apartment is 1 or 15, because it’s gone get ugly Kim, Imma have to fight



       1
           All further statutory references are to the Penal Code.
                                                2
       you with CPS and all type of other shit, baby, please do not go out like that,
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       I promise to fuckin’ god, come see me Kim, we gots some talk.

       Hamilton was subsequently charged with witness intimidation pursuant to section
136.1, subdivision (a)(2), a felony. That section punishes a knowing and malicious
attempt “to prevent or dissuade any witness or victim from attending or giving testimony
at any trial, proceeding, or inquiry authorized by law.” (§ 136.1, subd. (a)(2).) At trial,
Kimberly testified that she recognized the voice on the message as belonging to Hamilton
and that she was “terrified” when she testified at the preliminary hearing charging
Hamilton with witness intimidation. Prior to trial, the count for battery (§ 242) was
dismissed. The trial court declared a mistrial on the arson charge (§ 451, subd. (d)),
following a hung jury. Hamilton was convicted of the remaining count for witness
intimidation, pursuant to section 136.1, subdivision (a)(2), and sentenced to a prison term
of three years.


                                        DISCUSSION
       In determining whether the evidence in a criminal case is sufficient to support the
verdict, the test is “‘whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The test is not whether the
evidence established guilt beyond a reasonable doubt but whether the evidence could
persuade any reasonable jury to have found guilt beyond a reasonable doubt. (People v.
Johnson (1980) 26 Cal.3d 557, 576.)

       2
         The parties stipulate in their briefs that this is an accurate transcript of the
recording. Before the recording was played for the jury, the jurors received a transcript
of the recording but it was collected after the recording was played and was not admitted
into evidence.
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        Hamilton argues the evidence does not support a finding that he attempted to
dissuade the victim from attending or giving testimony as required by section 136.1,
subdivision (a)(2) because the content of his message does not connote an intent to
dissuade Kimberly from testifying or attending a trial, but only an attempt to “persuade
[her] to seek leniency with the prosecution on his behalf.” Thus, Hamilton argues that
although there may have been sufficient evidence to convict him pursuant to section
136.1, subdivision (b)(2), attempting to dissuade a witness from cooperating with the
prosecution, or section 137, subdivision (c), attempting to persuade a witness to give false
testimony or withhold true testimony, there was insufficient evidence to convict him of
the charged offense, a violation of section 136.1, subdivision (a)(2).
        It is clear from the phone message that Hamilton was threatening Kimberly—he
he told her that everyone in his family had her address and that it was going to “get ugly,”
he was going to fight her with CPS (child protective services) and “all type of other shit.”
What he was attempting to accomplish by asking Kimberly to come and see him, “come
get this shit up off of me,” and “get it off of me” is ambiguous.
        Hamilton argues that he did not ask Kimberly not to testify. “‘There is, of course,
no talismanic requirement that a defendant must say “Don’t testify” or words tantamount
thereto, in order to commit the charged offenses. As long as his words or actions support
the inference that he . . . attempted by threat of force to induce a person to withhold
testimony [citation], a defendant is properly’ convicted.” (People v. Mendoza (1997)
59 Cal.App.4th 1333, 1344.) To reverse a conviction for insufficiency of the evidence it
must “‘“clearly appear that upon no hypothesis whatever is there substantial evidence to
support it.”’ [Citation.]” (People v. Ford (1983) 145 Cal.App.3d 985, 988.) The jury
could have reasonably interpreted Hamilton’s message to Kimberly as a warning or threat
not to testify at trial.
        Hamilton cites three cases for the proposition that the prosecution cannot meet its
burden of proof for each element of the statute if the defendant is not convicted under the
proper statute. These cases rely on the conclusion that the Legislature, in creating
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separate Penal Code provisions, intended to distinguish between the various methods of
witness intimidation.
       In People v. Hallock (1989) 208 Cal.App.3d 595, 598, the defendant threatened
the victim at the time of the original crime, telling her: “‘if you tell anybody anything
that happened tonight here, . . . I’ll blow your house up.’” The defendant was charged
pursuant to section 136.1, subdivision (b), attempting to prevent or dissuade a witness
from making a complaint or report to law enforcement, but the jury was erroneously
instructed on a violation of subdivision (a), attempting to prevent or dissuade a victim
from attending or giving testimony at trial. (Id at p. 607.) The court rejected the
argument that the threat was sufficiently broad to support a conviction under either
subdivision (a) or (b), explaining that the “threat could only reasonably have been
believed to have been directed at reporting the crime to the police . . . or others in
authority that might lead to defendant’s arrest” and that it was “unreasonable to conclude
that defendant was concerned with testimony at a future trial for a crime for which he had
not yet been arrested.” (Ibid.)
       In People v. Fernandez (2003) 106 Cal.App.4th 943, 946-947, the defendant was
convicted under section 136.1, subdivision (b)(1), attempting to prevent or dissuade
another person from making a report to law enforcement. The facts clearly established
that the defendant drove the witness to the preliminary hearing and begged him not to tell
the truth. (Id. at p. 946.) The court held that although defendant’s conduct would have
been punishable as an attempt to influence a witness’s testimony under section 137,
subdivision (c), had it been charged under that section, it did not constitute a violation of
section 136.1, subdivision (b)(1). (Id. at p. 951.)
       In People v. Womack (1995) 40 Cal.App.4th 926, 928-929, the defendant followed
a witness for the prosecution who had been placed in protective custody, came up behind
him, placed a rope around his neck and brought him to the ground, where he then stabbed
the victim with a knife. The defendant told the victim he should have kept his mouth
shut. (Id. at p. 929.) When a car pulled up, the defendant twisted the rope one last time
                                              5
and his accomplice slashed at the victim’s throat, before they fled. (Ibid.) The court
found the verdicts for attempted murder and attempt to induce a person to give false
testimony or withhold true testimony (§ 137, subd. (b)) inconsistent, explaining that “an
intent to kill the witness is not coextensive with an intent to influence the testimony of
that witness by inducing him or her to give false or withhold true testimony.” (Id. at
pp. 931-932.)
       Each of these cases is distinguishable from the facts of this case. Unlike in People
v. Fernandez, supra, 106 Cal.App.4th at page 951 and People v. Hallock, supra,
208 Cal.App.3d at page 607, the issue in this case is not the timing of the threat.
Hamilton threatened Kimberly in an effort to get the charges dropped, and his threat was
broad enough to support several reasonable inferences -- he intended to dissuade her from
testifying, influence her testimony, or persuade her to seek leniency on his behalf.
Because the threat was made after the preliminary hearing and before trial and was
sufficiently broad, the jury could reasonably have found that Hamilton’s request for
Kimberly to “come get this shit up off of me,” was an effort to dissuade her from
testifying at trial. This case is also distinguishable from People v. Womack, supra, 40
Cal.App.4th 926, because Hamilton’s threat is not inconsistent with other facts of the
case. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206 [prevailing party entitled to
benefit of every reasonable inference and resolution of all conflicts in its favor].)
       We find substantial evidence supports the verdict.




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                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                               EPSTEIN, P. J.


We concur:




MANELLA, J.




COLLINS, J.




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