Foster

Defendant wishes to dissuade a victim from testifying against him in a criminal proceeding. He asks a third party to tell the victim not to testify against him. The third party agrees to do so, but does not relate defendant’s message to the victim. Here we hold sufficient evidence supports defendant’s conviction of Penal Code section 136.1, subdivision (a)(2).

Kevin Dewayne Foster appeals a judgment following his conviction of, among other things, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), count 1, a felony. He also appeals his conviction of attempting to dissuade a witness from testifying (§ 136.1, subd. (a)(2)), count 2, a felony.

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We conclude, among other things, that: (1) Foster’s phone call asking a third party to deliver a message to a witness that she should not testify against him was an attempt to dissuade a witness under section 136.1, subdivision (a)(2); (2) giving an unnecessary CALJIC No. 2.61 instruction to jurors was not prejudicial error; (3) the court properly applied section 1170.15 in sentencing Foster; and (4) the court did not violate Cunningham by imposing an upper term for assault. (Cunningham v.…