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Name: People v. Lopez
Case #: F062740
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/22/2012

The gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(4)(C) authorizes a life sentence on a conviction for Penal Code section 136.1 (witness intimidation) only if a jury finds that the act was accompanied by an express or implied threat of force. A jury convicted appellant of murder and other crimes, including witness intimidation (Pen. Code, § 136.1, subd. (a)(2)), and found true section 186.22, subdivision (b)(1) enhancements. As to the intimidation crime, evidence was presented that during proceedings, in the court house, appellant walked by a witnesses called to testify and stated “F… snitches,” or words to that effect. Relying on section 186.22, subdivision (b)(4)(C), the court sentenced him to a base term of 7 years to life for the witness intimidation offense, doubled because of a prior “strike” conviction. Reversed. Under section 136.1, a defendant who attempts to dissuade a witness from testifying is guilty of either a misdemeanor or felony but, if the act is accompanied by an express or implied threat of force, the defendant is guilty of a felony with an increased term of imprisonment. Under the Sixth and Fourteenth Amendments, the threat of force is a question of fact that a jury must find true beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) The plain meaning of section 186.22, subdivision (b)(4)(C) is that a life sentence can be imposed only if the jury convicts the defendant of intimidation by use of implied or express threat of force pursuant to section 136.1, subdivision (c)(1). Here, appellant was convicted of violating section 136.1, subdivision (a)(2), not subdivision (c)(1); the instructions did not require the jury to make a finding that appellant used a threat of force; and the jury did not make such a specific finding. Thus, appellant was not convicted of intimidation of a witness by threat or force and without such a conviction, he was not subject to the life sentence under section 186.22, subdivision (b)(4)(C).