Filed 12/21/17 P. v. Said CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ABDIFATH MOHAMED SAID,

Defendant and Appellant.
D071871



(Super. Ct. No. SCD266638)

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed as modified.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Abdifath Mohamed Said of attempting to dissuade a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1); count1), making a criminal threat (§ 422; count 2), and burglary (§ 459; count 3). The jury found that Said used a knife in connection with counts 1 and 2. Said admitted two prison priors (§ 667.5, subd. (b)); a serious felony prior (§ 667, subd. (a)(1)) and a "strike" prior (§ 667, subds. (b)-(i)).
The trial court denied a motion to strike the "strike" prior and sentenced Said to a determinate term of 12 years in prison. The court struck one prison prior and stayed the other prison prior.
Said appeals, challenging only count 1 and the true finding that he used a knife during the offenses in counts 1 and 2. Said contends there is not sufficient evidence in this case to support count 1 or the allegation of the use of a knife. Applying the proper standard of review, we will find sufficient evidence to support the jury's decision.
Said contends, and the People correctly agree, that the prison prior should have been stricken rather than stayed. Accordingly, we will direct the trial court to strike the prison prior and to modify the abstract of judgment. We will affirm the remainder of the judgment.
STATEMENT OF FACTS
On the morning of April 17, 2016, S.V. was at home along with her husband H.V. and their three young children. The V.'s lived in the City Heights neighborhood of San Diego. They owned additional units adjacent to their residence, which they rented out. On this day, one of the units was unoccupied and undergoing renovations.
At about 8:30 a.m., S.V. was in the kitchen making breakfast for her family. She saw Said through the kitchen window on the second floor. He was about 16 1/2 feet away, standing in front of a window of the unoccupied unit. Said had a knife and was trying to pry open the window.
S.V. yelled out to Said, "Hey, you can't be here!" Said did not react. S.V. yelled out to Said again. This time, Said turned and looked over his shoulder, but turned back to what he was doing at the window. S.V. summoned her husband.
H.V. immediately came to the kitchen and saw Said trying to break into the unoccupied unit. H.V. yelled to Said, "You can't be here!" Said ignored him. H.V. told Said that he was calling the police. H.V. called 911. While H.V. was on the phone, Said appeared to try to put the screen back on the window before he descended the stairs by the back door of the unit. H.V. handed the phone to S.V. and continued to watch Said.
Then, Said turned to face H.V.'s direction, extended his arm while holding the knife in his hand, and told H.V. that if he called the police, "I'm going to fucking kill you." H.V. was afraid and believed that Said would act on his threat. Said jumped over a gate to the yard, and walked away from the unit.
A San Diego police officer heard the radio call about a burglary and the suspect's description. He was in the area and responded in a marked police vehicle. The officer saw Said, who matched the suspect's description, and another man standing by a pickup truck in a nearby alley. Said was taking off his leather jacket and started to walk away. The officer had his firearm in a ready, downward position and gave directions for both men to go to the ground. Said's companion complied, but Said discarded his jacket and continued walking away. The officer saw Said reach into his left waistband. At that moment, another officer arrived on the scene and "rushed" Said against a garage door, taking him into custody. The police recovered Said's leather jacket from slightly under the pickup truck along with a silver-colored folding utility knife, commonly known as a Leatherman, under the truck that was parked about 30 yards from the area police took custody of Said.
DISCUSSION
Although it is largely undisputed that Said pointed a knife in the direction of H.V. and threatened to kill him if he called police, Said now argues the evidence is insufficient to prove the offense and the enhancement. Regarding the conviction for attempting to dissuade a witness, it appears Said contends that the witness was already on the phone to police, thus he cannot be guilty of attempting to dissuade the witness from reporting a crime. As to the use of a knife, it appears the challenge is based on the fact Said was around 15 feet away from H.V. when the threat was made and the knife pointed at the witness. We find that neither of the contentions has merit. We also find it significant that Said does not challenge the criminal threat conviction, based upon the same acts, since, as to that count, the jury must have concluded Said intended the witness to understand the statements as threats.
A. Legal Principles
When we review a challenge to the sufficiency of the evidence to support a conviction (or true finding on an enhancement) we apply the familiar substantial evidence standard of review. Under that standard, we review the entire record to determine if there is sufficient substantial evidence from which a reasonable jury could find each of the necessary elements has been proved beyond a reasonable doubt. In making that assessment we draw all reasonable evidence in favor of the jury's decision. We do not make credibility decisions nor do we reweigh the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
In order to prove the crime of attempting to dissuade a witness under section 136.1, subdivision (b)(1) "the prosecution must show: (1) the defendant has attempted to prevent or dissuade a person (2) who is a victim or a witness to a crime (3) from making any report of his or her victimization to any peace officer or other designated officials." (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.)
The prosecution must also prove that the defendant acted with the specific intent to dissuade the witness or victim. (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.)
B. Analysis
Dealing first with the dissuading a witness count, we find there is abundant evidence to support the conviction. First, the unchallenged conviction for criminal threat shows the jury found Said intended the witness to understand his comments as a threat. Plainly, a statement to a person that the defendant will return and kill the person if police are called is an act which could dissuade a person from reporting. Said claims, however, that H.V. had already started the process of reporting, thus he cannot be guilty of attempting to dissuade a witness.
First, there is no evidence Said believed the witness had actually reported to police at the time of his threat. Nor, is there evidence that the actual report had been completed before Said uttered his intentional death threat. It must also be kept in mind that the offense charged was attempting to dissuade a witness. The fact he was unsuccessful does not demonstrate he did not actively seek to scare the witness into refraining from reporting. It is also clear that the reporting process continued after Said's threats. In short, we find a reasonable jury could believe Said was intentionally attempting to prevent the reporting of his criminal activity by threatening to come back and kill the witness if police were called.
Last, we deal with the allegation of the use of the knife to commit counts 1 and 2. Essentially, Said relies on the distance between himself and the witness to argue the evidence is not sufficient to support the knife allegation. We reject this contention.
The use of a knife in connection with the threats is not dependent on physical proximity. Here the threat is to return later and kill the witness. The knife was displayed and pointed at the witness. A jury could reasonably find the display of the knife was part of the threat. By pointing the knife at the witness while promising to return and kill the witness, Said used the knife to demonstrate the seriousness of the threat, indicating to the witness the reality of Said's promise to return and kill the witness.
Frankly, the question of the sufficiency of the evidence in this case is not a close one. Where a defendant, pointing a knife at a witness, tells the witness he will return and kill the witness if police are called, and does so with the specific intent that the witness take the statement as a threat (§ 422), a reasonable jury could find the defendant attempted to dissuade the witness from reporting and used a knife to accomplish the crime.
DISPOSITION
The judgment is modified to strike the true finding on the prison prior (§ 667.5, subd. (b)). The superior court is directed to modify the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:



NARES, J.



HALLER, J.