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Name: People v. Wahidi
Case #: B245872
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 12/30/2013

Defendant “maliciously” attempts to dissuade a witness from testifying when he intends his comments to prevent the witness from testifying. Defendant was charged with assaultive offenses. The day before his preliminary hearing, he approached witness Kahn after prayer services at Kahn’s mosque, apologized for the incident, and asked whether they could settle the matter out of court “in a more Muslim manner family to family.” Defendant was found guilty of assault with a deadly weapon, vandalism, and misdemeanor attempting to dissuade a witness. He claimed on appeal there was insufficient evidence of dissuading a witness. Held: Affirmed. Penal Code section 136.1, subdivision (a) requires that the attempt to dissuade a witness from testifying be knowing and malicious. Given the facts—that Kahn had never previously seen defendant at his mosque until the day before the preliminary hearing and defendant was asking him not to testify, the “knowing” element was met. As for malice, section 136 defines it to include an intent to “thwart or interfere in any manner with the orderly administration of justice.” This means that section 136.1, subdivision (a)(2) makes it a crime to attempt to prevent a witness from testifying when the attempt is made with knowledge and the intent to prevent the testimony. While this may appear to write the word “maliciously” out of the statute, a review of the legislative history of sections 136 and 136.1, reflects the Legislature intended a broad interpretation of “maliciously” which can be proved either in the traditional sense (intent to vex, annoy, harm or injure) or in a manner unique to the statute (to thwart or interfere in any manner with the orderly administration of justice).