California Court of Appeals, Fourth District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Diego County No. SCS264145, Ana L. Espana, Judge.
[Copyrighted Material Omitted]
Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
This case arose in the courthouse in Chula Vista when defendant Taheedah Forrest physically attacked and threatened her sister-in-law, Patria Smith, who was testifying as a prosecution witness against Forrest's brother (Smith's husband) during his robbery trial. In the present case, a jury convicted Forrest of (1) dissuading a witness (Smith) from testifying (count 1: Pen. Code, § 136.1, subd. (a)(1); all further undesignated statutory references will be to the Penal Code unless otherwise specified), and (2) making a criminal threat (count 2: § 422). As to count 1 the jury found to be true an allegation that Forrest committed and attempted to commit that offense through the use of force and an express and implied threat of force (§ 136.1, subd. (c)(1)). The court sentenced Forrest to three years' formal probation, conditioned on her serving 365 days in jail with credit for time already served.
On appeal Forrest challenges her convictions, contending (1) the court prejudicially erred by allowing an investigator to testify for the prosecution that he had conducted a threat assessment for the district attorney's office and had determined that Smith should be placed in a witness protection program, (2) the prosecutor committed misconduct by prejudicially engaging in impermissible vouching in violation of Forrest's federal constitutional right to due process, and (3) the court prejudicially erred by failing to instruct the jury sua sponte on the lesser included offense of attempting to make a criminal threat.
Forrest also contends that three conditions of her probation (conditions 6.d., 12.f., and 12.g.) are unconstitutionally vague and/or overbroad and must be either stricken or modified.
Last, Forrest contends that both the October 28, 2013 minute order and the October 28 probation order must be corrected to reflect the court's oral pronouncement of sentence that she serve 365 days (not 372 days) in local custody as a condition of her probation. The Attorney General acknowledges the minute order and probation order should be corrected to conform to the oral pronouncement of judgment.
For reasons we shall explain, we modify condition 12.g. of Forrest's probation in order to avoid unconstitutional overbreadth, and we affirm the judgment as so modified. However, we remand the matter to the superior court with directions to correct the October 28 minute order and the October 28 probation order to reflect the court's oral pronouncement of sentence that she serve 365 days in local custody as a condition of her probation.
On April 12 the victim in this case, Smith, testified as a prosecution witness at the San Diego County Superior Court's courthouse in Chula Vista in a criminal case in which Smith's husband, Lukmond Muhammad, and Anthony Bolden were on trial for committing a robbery. Smith was also charged in connection with the robbery because she had participated as the getaway driver. After she pleaded guilty to being an accessory after the fact, she entered into an agreement with the district attorney's office under which she would testify truthfully against her husband and Bolden, and in exchange she would be sentenced to custody for the length of time she had already served.
Forrest is Smith's sister-in-law because Smith is married to her brother. Forrest and her sister, Fatima Muhammad,  were in the courtroom on April 12, the day Smith testified against Lukmond.
In the present case, Smith testified for the prosecution that while she was testifying at Lukmond's trial, Forrest made noises, whispered, and twice stood up and left the courtroom in "a loud, rude manner." Later, after the court announced a recess during Smith's testimony, Smith and her godmother, Veronica Hall, stepped out of the courtroom and took the elevator to
the second floor to use the restroom. When they found the women's restroom was closed, they headed for the escalator. Before they reached the escalator, Forrest and her sister, Fatima, approached Smith.
Smith also testified that Forrest was angry when she approached Smith, and Forrest "got in [her] face" while "talking a lot of verbal abuse." Smith further testified that Forrest spoke to her in a "mean manner" and angrily kept yelling, "You're going to get it. You're going to get it. Do you think you are going to live? You are going to get it after court." Smith testified that Fatima was "holding [Forrest] back" while Forrest was yelling at Smith.
In similar testimony, Hall stated that Forrest "called [Smith] some names" and said to Smith, "You think you will live through this? We will get you. We will get you when you get out of here. Wait until we get out of here outside." Hall also testified that Forrest told Smith she did not understand why Smith was testifying against Forrest's brother.
Smith testified that she "asked [Forrest] what was the problem, " and then Hall pulled Smith away and they (Smith and Hall) "just walked away" toward the escalators while Forrest continued to angrily yell across the room. Before Smith and Hall reached the escalators, Forrest approached Smith and hit her in the face. Smith described the blow as "a hard impact" and testified she believed Forrest had been holding an object in the hand she had used in hitting her. Smith's injuries included a swollen lip and scratches on her cheek near her nose. The force of the impact broke Smith's glasses and caused them to fall to the floor in pieces.
Hall yelled for help and a sheriff's deputy responded. Smith recounted the incident to the deputy district attorney and ...