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Name: People v. Torres
Case #: H035626
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/30/2011

Penal Code section 136.1, subdivision (c)(1) (witness intimidation by force or threat of force) requires a finding of force. Penal Code section 136.1 describes crimes that can be punished as either misdemeanors or felonies with subdivision (c)(1) being a straight felony. A specified circumstance of (c)(1) is when the act is accompanied by force or threat of force upon a witness. Here, appellant was convicted by jury of attempting to dissuade a witness, but with no finding of the force or threat element, the parties having agreed to bifurcate this element. It then disappeared from the case. Regardless, appellant was sentenced pursuant to subdivision (c)(1) and was also sentenced to a related violent felony enhancement and a time credit restriction. On appeal, the parties agreed that the remedy for the error is to deem appellant to have been convicted of section 136.1, subdivision (b)(1) and to remand for sentencing on this wobbler, with the violent felony enhancement and time credit limitations disregarded.