56 Cal.App.5th 972
Cal. Ct. App.2020Background
- Octavio Reyes, a deputy public defender, was charged with two felonies: (1) attempting to dissuade a witness/victim from reporting a crime (Pen. Code §136.1(b)(1)) and (2) using fraud to induce a witness to withhold information from law enforcement (Pen. Code §137(b)).
- Relevant facts: Jacques Olivas had a protective order (revised July 3, 2018) prohibiting contact with his mother Evelyn except through counsel; Evelyn received a July 3 call from someone identifying as "Jacques's district attorney" who told her not to call police but to call him instead; emails and a July 11 phone contact with Jacques’s former girlfriend (Estes) followed; Evelyn later did not call police on Aug. 24 because she believed she had been told to call the purported "district attorney."
- Magistrate bound Reyes over on the §136.1 charge; the People then added the §137(b) charge alleging fraud-induced withholding.
- The superior court granted Reyes’s Penal Code §995 motion and dismissed both counts, concluding §136.1(b)(1) requires a past crime and apparently treating §137(b) similarly.
- The Court of Appeal: affirmed dismissal of count 1 (§136.1(b)(1)) by applying the rule of lenity (statute ambiguous as to whether it covers future/ongoing crimes); reversed dismissal of count 2 (§137(b)), holding §137(b) plainly covers attempts by fraud to induce withholding of information from law enforcement; remanded for further proceedings on count 2.
- The opinion also raised prosecutorial-ethics and proportionality concerns about charging a junior public defender for conduct arising from his representation, urging prosecutorial offices to consider conflicts and seek second opinions when appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §136.1(b)(1) — does "that victimization" include ongoing or future crimes? | §136.1(b)(1) covers dissuading reports of ongoing or future criminal conduct (text, victim/witness definitions, statutory purpose). | The phrase "that victimization" refers to a completed/past crime; applying it to future crimes is unforeseeable and raises due process concerns. | Statute ambiguous as applied here; under rule of lenity ambiguity resolved for defendant — dismissal of §136.1(b)(1) count affirmed. |
| Scope of §137(b) — does it reach fraud to induce withholding of reports (not just influencing content)? | §137(b) plainly prohibits using fraud to induce withholding of true material information from law enforcement; applies to the alleged conduct. | §137 should be read narrowly (per some appellate decisions) to avoid overlap with other witness-tampering statutes; it targets influencing testimony content, not wholesale prevention of reporting. | §137(b) applies to attempts by fraud to induce withholding of information from law enforcement; superior court’s dismissal reversed and count 2 reinstated. |
| Due process / fair notice of criminality for the charged constructions | The statutes and precedent give fair notice (esp. for §137(b)); prosecution does not violate due process. | Novel application of §136.1(b)(1) or §137(b) to these facts would violate due process because defendant lacked fair notice. | No due process barrier to prosecuting under §137(b); lenity resolved ambiguity for §136.1(b)(1) (count 1). |
| Prosecutorial discretion and ethics in charging an adverse defense attorney | Prosecutor acted within discretion based on preliminary evidence. | Charging a defense lawyer for conduct arising from representation raises conflicts, proportionality, and ethical concerns (risk of undermining client rights; severe professional consequences). | Appellate court flagged serious ethics/proportionality considerations and recommended prosecutorial offices re-evaluate charging decisions in such contexts, though it did not bar further prosecution on §137(b). |
Key Cases Cited
- People v. Pic'l, 31 Cal.3d 731 (1982) (Supreme Court held inducement to withhold testimony can be a form of "influencing" testimony; supports §137 covering withholding)
- People v. Womack, 40 Cal.App.4th 926 (1995) (narrowly construed §137 to avoid rendering other witness-tampering statutes surplusage)
- People v. Pettie, 16 Cal.App.5th 23 (2017) (held that attempts to prevent future reports may satisfy §136.1 in contexts involving ongoing conduct)
- People v. Fernandez, 106 Cal.App.4th 943 (2003) (refused to stretch §136.1(b)(1) beyond its text where other statutes applied)
- People v. Nuckles, 56 Cal.4th 601 (2013) (explains rule of lenity and when it applies in criminal statutory ambiguity)
- United States v. Lanier, 520 U.S. 259 (1997) (due process limits on novel judicial constructions of criminal statutes)
- People v. Eubanks, 14 Cal.4th 580 (1996) (discusses prosecutorial duty to seek justice and avoid conflicts of interest)