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Name: People v. Foster
Case #: B185709
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 09/19/2007

Appellant was properly convicted of attempting to dissuade a witness from testifying even though the message was given to a third party and never delivered. Foster assaulted Genevieve S. and wished to keep her from testifying against him. He told Buchanan to give Genevieve a message that she better not testify against him. Buchanan said he would tell her, but he decided not to call her. Foster’s phone calls to Buchanan were recorded and played for the jury in a prosecution for assault and for attempting to dissuade a witness from testifying (Pen. Code, sec. 136.1, subdivision (a)(2)). Following his conviction on both counts, Foster contended on appeal that there was insufficient evidence to support his conviction for attempting to dissuade Genevieve from testifying because he talked to an intermediary and did not communicate directly with Genevieve, and because she never received the message. The appellate court rejected the argument. The evidence showed that Foster intended to prevent Genevieve from testifying against him and told Buchanan to threaten her. The statute neither restricts the means a defendant selects to commit the offense, nor does it require the defendant to personally deliver the message. A threat need not actually deter or even reach the witness because the offense is committed when the defendant makes the attempt to dissuade the witness. Foster’s actions fell within both the letter and the spirit of the law.