Thursday, January 2, 2014
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Court of Appeal Upholds Conviction on Witness-Tampering Charge
Justices Say Attempt to Resolve Case ‘Family to Family’ Was Malicious Under Penal Code Section
By KENNETH OFGANG, Staff Writer
A criminal defendant who approached the victim a day before the preliminary hearing, asking him to uphold religious tradition by resolving the case “family to family, without going to court,” was properly convicted of witness tampering, the Court of Appeal for this district has ruled.
Div. Seven Monday affirmed Abdullah Wahidi’s convictions and two-year sentence on charges of assault with a deadly weapon, felony vandalism, and “[k]nowingly and maliciously,” but without force or violence, attempting to dissuade a witness from testifying, which Los Angeles Superior Court Judge Michael Kellogg declared to be a misdemeanor.
The case, which Kellogg tried without a jury, grew out of a parking lot confrontation among several men in February 2011. According to testimony, Wahidi broke the windows of Farahan Khan’s car with a baseball bat while at least one friend of Khan’s was in the vehicle, and punched another friend of Khan’s in the face.
Seven months later, Khan said, Wahidi approached him following prayer services at Khan’s mosque, apologized, and suggested that since they were both Muslims, they should “just settle this outside the court in a more Muslim manner family to family, have our families meet and settle this outside of court and not take this to court.”
Kellogg found the defendant guilty on three counts and imposed concurrent sentences, ordering more than $7,000 in restitution in addition to the prison term. Wahidi was acquitted on three other ADW counts and of misdemeanor battery.
Attempt to Dissuade
On appeal, the defense argued that Khan’s testimony regarding the alleged conversation outside the mosque did not constitute substantial evidence of attempting to dissuade a witness within the meaning of Penal Code §136.1(a)(2).
The statute prohibits “[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” A companion provision, §136, defines malice as “an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.”
Justice Fred Woods, writing for the Court of Appeal, said there was clearly substantial evidence that Wahidi made a “knowing” attempt to dissuade Khan from testifying. He cited Khan’s testimony that he had not seen Wahidi at that particular mosque before, that the event occurred the day before the preliminary hearing, and that Khan understood that Wahidi was asking him not to testify.
Whether the defendant acted with malice, was a closer question, the justice said. But the legislative history supports the trial judge’s, and the prosecution’s, interpretation, he concluded.
‘Knowingly and Maliciously’
The law, Woods explained, was revised in 1980, in part by changing the intent standard from “willfully and unlawfully” to “knowingly and maliciously,” and also by making an attempt to dissuade a witness a crime, enabling prosecution without regard to whether the witness was actually dissuaded.
The change was based on model legislation drafted by the American Bar Association’s Criminal Justice Section, accompanied by commentary showing that a broad definition of malice was intended, Woods concluded.
“The statute provided that the prosecution could show malice in either of two ways: proving the traditional meaning of malice (to vex, annoy, harm, or injure) or proving the meaning of malice that is unique to the statute (to thwart or interfere in any manner with the orderly administration of justice),” the jurist wrote.
“Given this statutory definition of malice, and the legislative history of the origin of the statutory definition, we conclude there was sufficient evidence to support the finding that Wahidi acted maliciously as well as knowingly under section 136.1 in attempting to [dissuade] Khan from testifying at the preliminary hearing the next day.”
The case is People v. Wahidi, B245872.
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