People v. Shaheed CA2/6 ( 2021 )

Filed 10/18/21 P. v. Shaheed CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306340
(Super. Ct. No. 2019021596)
Plaintiff and Respondent, (Ventura County)
v.
OMAR DUANE SHAHEED,
Defendant and Appellant.
Omar Duane Shaheed appeals from the judgment
after a jury convicted him of dissuading a witness (Pen. Code,
§ 136.1, subd. (b)(2)).1 The trial court sentenced him to 16
months in state prison. He contends the conviction is not
supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sheriff’s deputies responded to a 911 call at I.T.’s
apartment. She had bruises and swelling on her face, a corneal
abrasion, a chipped tooth, a bite mark on her finger, bruises on
1 Subsequent statutory references are to the Penal Code.
her neck, and lacerations on her lip that required stiches. She
told deputies her boyfriend, Shaheed, had punched her,
threatened her with a knife, bit her finger, and strangled her
until she lost consciousness.
Four days later, sheriff’s deputies arrested Shaheed
for domestic violence against I.T. She told them she did not want
to prosecute.
Shaheed telephoned I.T. from jail. She said she told
police they were “taking away . . . the bread winner of our
household.” She told Shaheed, “I don’t know but if I have to come
to court and say I don’t want them to press charges.” He
responded, “[Y]ou don’t need to go to court at all” and “just stay
away from that shit.” He said, “I guess they gonna be looking for
you again to try to find you and get you in to be the witness.”
When I.T. asked if she had to be a witness if she did
not want to, Shaheed replied, “I mean they gonna try to,” and,
“you gotta stop trying to explain, don’t try to explain nothing just
stay out the way don’t talk to ‘em, don’t talk to ‘em at all ‘cause
that’s what they gonna try to have you do.” He continued, “That’s
what I’m saying, like, period just don’t try to say nothing just
stay out the way because [the police are] gonna come try to look
for you to try to build a case.”
Shaheed told I.T. that “they” were trying to lock him
up and “you just gotta steer clear of ‘em.” I.T. said, “I’ve already
explained to them I need you and I’m not pressing charges.”
Shaheed responded, “Yeah but no there ain’t no more explaining
just don’t say nothing else to ‘em they come looking for you just
stay clear, don’t let ‘em see you whatever okay?” She said that
when they call, she would say she did not have time. Shaheed
interrupted her and said, “No just stop answering their shit.”
2
On the day Shaheed was arraigned on domestic
violence charges, he made a second call to I.T. She told him the
district attorney’s office called her and asked if she wanted an
order that Shaheed not contact her. He responded, “Why are you
talking to them so much though?” He continued, “But stop
talking to them though, ‘cause then what if they, they start
talking to you, like they’re gonna try to figure out who had
knowledge. So, stop talking to them period.” He said, “in a while
they’re gonna be trying to track you down and be a witness, so
just stop talking to them.” “[D]on’t even be trippin’ or fuckin’
with them, ‘cause they’re gonna try to twist me up, you know.
Try to ask you all kind of bullshit. And they’re already trying to
build a case.”
I.T. was served with a subpoena for the preliminary
examination. In her testimony, she denied Shaheed strangled
her, brandished a knife, or punched her. She testified she needed
him to help with rent, the car, groceries, gas, and things around
the house. She said she did not believe he was trying to prevent
her from participating in the prosecution.
I.T. did not appear as a witness at trial. The
prosecution presented her preliminary examination testimony,
impeached it with her statements to police and evidence of her
injuries, and played recordings of the jail phone calls. Shaheed
testified that when he told I.T. “Don’t talk to them,” he was
referring to “[w]hoever may get her words misconstrued,”
including the prosecution.
The jury found Shaheed guilty of dissuading a
witness (§ 136.1, subd. (b)(2)) and not guilty of criminal threats
(§ 422). The jury deadlocked on the domestic violence charge
(§ 273.5, subd. (a)) and that count was dismissed.
3
DISCUSSION
Shaheed contends his right to due process was
violated because the conviction was not supported by substantial
evidence. We disagree.
Dissuading a witness includes “attempt[ing] to
prevent or dissuade” the victim or a witness from “[c]ausing a
complaint . . . [or] information . . . to be sought and prosecuted,
and assisting in the prosecution thereof.” (§ 136.1, subd. (b)(2).)
A “‘victim’” is a person “with respect to whom there is reason to
believe that any crime . . . has been perpetrated.” (§ 136, subd.
(3).) “Dissuade” means “to act (verbally or otherwise) to prevent
a witness from testifying.” (People v. Lyons (1991) 235
Cal.App.3d 1456, 1461.)
The crime of attempting to dissuade a witness is a
specific intent crime. (People v. Young (2005) 34 Cal.4th 1149,
1210-1211.) “The intent with which a person acts is rarely
susceptible of direct proof and usually must be inferred from facts
and circumstances surrounding the offense.” (People v. Massie
(2006) 142 Cal.App.4th 365, 371.)
In evaluating whether a judgment is supported by
substantial evidence, we review the entire record in the light
most favorable to the judgment, presume in support of the
judgment every fact that can be reasonably deduced from the
evidence, and determine whether any rational finder of fact could
have found that the prosecution sustained its burden of proof
beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th
327, 357.) This standard of review satisfies the due process
requirements of the Fourteenth Amendment to the United States
Constitution as described in Jackson v. Virginia (1979) 443 U.S.
4307, 316-319. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.)2
The jail calls provided substantial evidence that
Shaheed attempted to dissuade I.T. from testifying at the
preliminary examination or from assisting the prosecution to
“build a case” against him. He told her to not talk to them, to
avoid service of a subpoena, to not let them see her, and to not go
to court.
Shaheed contends he did not attempt to dissuade I.T.
from testifying because she did not wish to testify or participate
in the prosecution and he merely offered her the advice she
requested. That is a distinction without a difference. It clearly
served his interests to prevent her from providing statements or
testimony that would assist the prosecution, even if she had her
own financial reasons to not want prosecution. (See In re Holmes
(1983) 145 Cal.App.3d 934 [contempt to assist uncooperative
witness evade subpoena].)
“A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the jury’s verdict.”
(People v. Zamudio, supra, 43 Cal.4th at p. 357.) Because the
verdict is supported by substantial evidence, we may not reverse
simply because an alternate theory might also be reconciled with
the evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99,
162.)
2 Shaheed also cites the due process clause of the Fifth
Amendment, which only applies to federal prosecutions.
(Dusenbery v. United States (2002) 534 U.S. 161, 167; Bartkus v.
Illinois (1959) 359 U.S. 121, 124.)
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
6
Ferdinand Inumerable, Judge
Superior Court County of Ventura
______________________________
Earl E. Conaway, III, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Noah P. Hill and Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.