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Name: People v. Velazquez
Case #: B223730
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 11/29/2011

Under Penal Code section 1118.1, a defense motion for acquittal must be granted if the prosecution has failed to present a prima facie case during its case-in-chief. Appellant was charged with and convicted of three counts of Penal Code section 422 and three counts of section 136.1, subd. (b) (dissuading a witness), for the benefit of a criminal street gang (Pen. Code, sec. 186.22, subds. (b)(1), (b) (4)), and sentenced to life terms. At trial, a police officer testified that he interviewed the victim on March 3, and that she was very upset. During the interview, the victim received a telephone call which the officer heard over a speaker phone. The caller, subsequently identified as appellant, told her nothing would happen to her if she dropped charges against his “homie.” The victim failed to appear for trial during the prosecution’s case-in-chief. Upon completion of the defense case, appellant made a motion for acquittal of four of the six counts, which the court denied. The prosecution was subsequently able to locate the victim and she testified during rebuttal, providing the necessary evidence for conviction as to the four counts. The appellate court reversed as to the four counts because at the time of defendant’s motion for acquittal there was insufficient evidence before the jury to support the convictions. The court also ruled that section 136.1, subd. (b) applies to more than pre-arrest efforts to dissuade a witness, and includes action to prevent a victim from causing a complaint or information to be prosecuted.