People v. Reyes

56 Cal.App.5th 972

271 Cal.Rptr.3d 68

The PEOPLE, Plaintiff and Appellant,

v.Octavio Joseph REYES, Defendant and Respondent.

A158095

Court of Appeal, First District, Division 4, California.

Filed October 30, 2020

Certified for Partial Publication.^*

Krishna A. Abrams, District Attorney, Julie Underwood and Karen Jensen, Deputy District Attorneys, for Plaintiff and Appellant.

Arguedas, Cassman, Headley & Goldman, Raphael M. Goldman, San Francisco, Theodore W. Cassman, Cristina C. Arguedas, Berkeley, for Defendant and Respondent.

STREETER, J.

An information charged Octavio Joseph Reyes, a deputy public defender who began practicing law less than three years ago, with two counts of witness tampering—first, for violation of Penal Code ¹ section 136.1, subdivision (b)(1), which proscribes an attempt to dissuade any victim of or witness to a crime from reporting "that victimization" to law enforcement, and, second, for violation of section 137, subdivision (b), which proscribes the attempted inducement of any person "by the use of fraud" to "withhold" "true material information pertaining to a crime" from law enforcement.

The superior court granted Reyes's motion to set aside the information under section 995. The People appeal, arguing they presented sufficient evidence at the preliminary hearing to establish probable cause to believe that Reyes committed the charged offenses. Reyes defends the order of dismissal, contending (1) his alleged conduct does not constitute a crime under the statutory provisions at issue, and (2) prosecuting him for a violation of these two statutes violates his due process rights.

The dismissal order presents close questions of statutory interpretation as to both counts. We resolve these questions as follows:

First, we shall affirm the dismissal of the section 136.1, subdivision (b)(1) count. The core issue there is whether, to constitute dissuasion covered by the statute, the suppressed report of "victimization" must be of a past, completed crime, as Reyes argues, or, as the People argue, may be either a past crime or an ongoing course of criminal conduct expected to continue into the future. Because neither the statutory text, the structure of the statute, nor the legislative history supplies a definitive answer, we conclude that this is one of those rare cases where competing interpretations of a criminal statute stand in relative equipoise, so we resolve the ambiguity in Reyes's favor under the rule of lenity.

Second, we shall reverse the dismissal of the section 137, subdivision (b) count. Section 137, subdivision (b), in plain terms, unlike section 136.1, subdivision (b)(1), has no language requiring, even arguably, that the withholding of testimony or information to which it is directed must involve a past crime. All it requires is that the attempt to induce the withholding must be made "by the use of fraud," which is indisputably alleged here. Reyes cites a line of Court of Appeal cases that he argues support construing section 137, subdivision (b), to apply only to the influencing of testimony or information provided to law enforcement—in short, tampering with the substance of testimony or information—not to the withholding of testimony or information altogether. We are not persuaded that these cases are controlling. The most significant precedent is a California Supreme Court case, People v. Pic'l (1982) 31 Cal.3d 731, 183 Cal.Rptr. 685, 646 P.2d 847 ( Pic'l ), which squarely rejects the view that section 137 applies only to attempts to influence the substance of testimony or the substance of reported information. We are bound to follow Pic'l .

I. BACKGROUND

A. The Complaint Alleging Violation of Section 136.1, Subdivision (b)(1)

A felony complaint filed in October 2018 charged Reyes with one felony count of attempting to dissuade a witness from reporting a crime in violation of section 136.1, subdivision (b)(1). The complaint alleged that Reyes committed the offense "[o]n or about July 3, 2018."

B. The Evidence Presented at the Preliminary Hearing

1. Stipulated Facts

At the outset of the preliminary hearing on January 29, 2019, the parties submitted a written stipulation agreeing on certain background facts. The court admitted the stipulation into evidence. Although the parties have not provided a copy of the stipulation to this court, we glean the following from it, based on the summary in Reyes's appellate brief:

"1. Mr. Reyes served as a Solano County Public Defender, and represented defendant Jacques Olivas in connection with several cases, including case number FCR337942.

"2. Mr. Reyes appeared as counsel of record for Mr. Olivas at court hearings in case number FCR337942 on June 6, June 8, June 13, and July 3, 2018.

"3. On June 13, 2018, Mr. Olivas resolved case number FCR337942 with a nolo contendere plea to a violation of Penal Code [section] 148 [,] [subdivision](a)(1). As a condition of probation, the Court imposed an order pursuant to which Mr. Olivas was ordered not to annoy, harass or threaten his mother, Evelyn Olivas, and not to have any uninvited contact with Evelyn Olivas.

"4. On June 26, 2018, the Solano County District Attorney's Office filed new charges against Mr. Olivas in case number FCR338569. On the same date, in case number FCR337942, the District Attorney's Office alleged that Mr. Olivas had violated the terms of his probation.

"5. On July 3, 2018, the new charges and the alleged probation violation were resolved. The charges in case number FCR338569 were dismissed. In case number FCR337942, the Court reinstated Mr. Olivas's probation, but with a new and revised protective order. Under the July 3, 2018 protective order, Mr. Olivas was required to stay 100 yards away from Evelyn Olivas and to stay away from her home. Mr. Olivas was further prohibited from having any ‘personal, electronic, telephonic, or written contact’ with Evelyn Olivas, and prohibited from having contact with Ms. Olivas ‘through a third party, except an attorney of record.’

"6. After the resolution entered on July 3, 2018, Mr. Olivas had no pending criminal charges until August 28, 2018, at which time the District Attorney's office brought further criminal charges against Mr. Olivas."

2. Witness Testimony

In addition to the above stipulated facts, the record at the preliminary examination included testimony from the following witnesses, who testified as follows.

Vacaville Police Officer Julie Bailey testified she arrested Jacques Olivas on May 30, 2018. On that day, Officer Bailey and other officers responded to Evelyn Olivas's residence in Vacaville. Evelyn Olivas reported that her son had assaulted her, and after a chase and a struggle, the officers arrested Jacques Olivas.²

Jerry Sanchez, an investigator with the Solano County District Attorney's Office, testified that he interviewed Evelyn. Evelyn told Sanchez that on July 3, 2018, she received a call on her cell phone from Reyes. Ms. Olivas stated that Reyes identified himself as "Jacques's district attorney." Reyes provided his email address and telephone number. Evelyn made notes on the back of an envelope about what Reyes told her. Evelyn stated that, on the July 3 phone call, Reyes told her that Jacques was going to be released that day. Evelyn stated that Reyes told her that "if [Jacques] was near her home or at her home, not to call the police" and instead "to call [Reyes]."

On July 11, 2018, Evelyn sent Reyes an email, attaching a letter to Jacques.³ Reyes responded to the email, saying he would "review these documents and get back to you," and asking for the phone number of Darla Estes, who is Jacques's former girlfriend and has a child in common with him. Evelyn responded with an email providing Estes's phone number to Reyes.

Sanchez interviewed Estes, who stated that she spoke with Reyes by phone on July 11, 2018. According to Sanchez, Estes said Reyes "told her to tell Evelyn not to call the police if the restraining order was violated, to call him."

On July 12, 2018, Evelyn sent Reyes another email, again attaching a letter. The email was addressed to "Mr. Reyes," but attached a letter addressed to "Joseph Reyes, district attorney." Reyes did not respond to the July 12 email. On cross-examination at the preliminary hearing, investigator Sanchez testified he found no evidence that Reyes read the July 12 email or the letter attached to it. On redirect, Sanchez testified he could tell that Reyes read some of his emails because he responded to one of the emails that Evelyn sent him. Sanchez said it also appeared that Reyes read the email Evelyn sent him with Estes's phone number, because Reyes then contacted Estes.

Officer Bailey testified she responded to an incident at Evelyn's home shortly after midnight on the night of August 25–26, 2018. Officer Bailey testified that Evelyn "called the police department to report that her son Jacques was attempting to get into her mobile home and that she had a restraining order against him, a domestic violence restraining order." Officer Bailey and her partner again arrested Jacques after another struggle. After the arrest, Officer Bailey spoke with Evelyn. In this interview shortly after Jacques's arrest, Evelyn said that, on August 24, 2018, the manager of her trailer park had called to tell her that Jacques had been "lingering in the trailer park that day."⁴

What precipitated the investigation of Reyes for possible witness tampering was that, in her interview with Officer Bailey in the early morning hours of August 26, Evelyn told Officer Bailey she had not called the police on August 24 because "the district attorney had told her not to call the police if [Jacques] violated the restraining order, but to call him instead." Evelyn similarly told investigator Sanchez that she did not call the police on August 24 because Reyes had instructed her not to do so. She instead tried calling Reyes but was unable to reach him. Later on August 26, 2018, Evelyn sent Reyes another email, again attaching a...