P. v. Tiznado CA2/6

Filed 7/17/13 P. v. Tiznado CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B239027 (Super. Ct. No. BA380647) Plaintiff and Respondent, (Los Angeles County)

v.

ANTONIO TIZNADO,

Defendant and Appellant.

Antonio Tiznado appeals from the judgment entered after his conviction by a jury of attempting by force or threat to dissuade a witness from testifying. (Pen. Code, § 136.1, subd. (c)(1)),1 second degree robbery (§§ 211, 212.5), and possession of a firearm by a convicted felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)). The jury found not true allegations that appellant had committed the attempted witness dissuasion and robbery offenses for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Appellant was sentenced to prison for five years, eight months. Appellant contends that the evidence is insufficient to show that he had the specific intent required for attempting to dissuade a witness. He also contends that the

1 All statutory references are to the Penal Code.

1

trial court erroneously instructed the jury and failed to properly answer the jury's questions. We affirm. Facts2 Appellant's brother was charged with the August 2010 murder of Rene Guardado. Sergio Hill was Guardado's friend, and he was present when Guardado was shot. Hill, who was 16 years old, told the police about what he had seen and heard at the time of the shooting. He did not identify appellant's brother as the shooter. On February 24, 2011, Hill testified at the preliminary hearing in the murder case. In the afternoon on January 23, 2011, one month before the preliminary hearing, Hill was riding his bike when appellant "ran up, and pushed [him] off [the] bike." Hill fell to the ground in the middle of the street. While Hill was on the ground, appellant punched him in the head and said, "[W]hy you snitchin' on my brother[?]" Hill knew that appellant was referring to his brother's murder case. The assault occurred only two blocks away from where Guardado had been shot. When Hill fell off the bike, his iPod came out of his pocket and landed on the ground. Appellant picked it up and kept it. Hill got back on the bike and rode away. As Hill was leaving, appellant said, "Fuck you and your Dad." Hill believed that appellant was an active member of the Florencia 13 criminal street gang. A gang expert opined that appellant "was at the very minimum an associate if not an active member" of the gang. Sufficiency of the Evidence To establish the crime of attempting to dissuade a witness, the People were required to prove that appellant had the specific intent to dissuade Hill from testifying. (People v. Young (2005) 34 Cal.4th 1149, 1210-1211.) Appellant contends that the evidence is insufficient to support his conviction because it does not show that he had the requisite specific intent. Appellant argues that "any conclusion as to what [his]