THE PEOPLE, Plaintiff and Appellant, v. OCTAVIO JOSEPH REYES, Defendant and Respondent.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 10/30/20
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 Code1 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
Second, we shall reverse the dismissal of the
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
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].”
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
The defense sought to impeach Evelyn by eliciting testimony from Sanchez that Evelyn had made false statements to the police, including in an incident in September 2018 when she initially told the police Jacques was in her home without her permission but later stated she had given him permission. And according to testimony elicited from Sanchez on cross-examination, Evelyn sent a letter to the prosecutor in the present case in which she blamed Reyes in part for exacerbating her son Jacques‘s legal troubles.5 In the cross-examination of Sanchez, the defense also confirmed that, when Reyes contacted Estes, he specifically identified himself to her as a deputy public defender.
As part of his investigation, Sanchez spoke briefly with Reyes in a courtroom hallway. Reyes wanted to speak with his supervisor before proceeding with an interview. Rather than take that as the typical reticence of a junior deputy defender to speak with an investigator for the district attorney‘s office without first consulting a more experienced colleague, Sanchez began to consider Reyes a “suspect” at that point because he “refused to answer” when Sanchez asked him whether Evelyn had sent him “any correspondence as a deputy district attorney.” But when Sanchez asked Reyes directly whether he had presented himself as a district attorney, Reyes denied having done so.
C. By Information, the People Add a Charge of Violating Section 137, Subdivision (b)
On the above evidentiary showing, the magistrate determined there was probable cause to bind Reyes over for trial on the charge of violating
Count 1 of the information alleged that “[o]n or about and between July 3, 2018 and August 26, 2018,” Reyes attempted to dissuade a victim or witness from reporting a crime in violation of
D. The Motion To Set Aside the Information
The defense filed a motion to set aside the information pursuant to
The superior court granted the
Turning to the
Finally, the superior court agreed with the defense‘s due process notice argument, although the court again appeared to link that ruling to its holding as to the proper interpretation of
The People appealed.6
II. DISCUSSION
Throughout the proceedings below, before the magistrate, as well as before the superior court, the defense was emphatic that Reyes firmly denies he ever tried to prevent Evelyn from calling the police or that he ever impersonated a district attorney. What happened here, as summed up by the defense in the hearing before the magistrate, is that because the protective order prevented any direct contact between Evelyn and Jacques, “Mr. Reyes told Ms. Olivas not to contact her son, otherwise the police could get involved because that would be a violation of a protective order, and instead to communicate through him, counsel of record.” We acknowledge this denial—repeated again here on appeal, in the responding brief and at oral argument—and we begin by saying that nothing in this opinion should be read to presuppose the truth of the People‘s allegations. We address only the legal sufficiency of the charges in the information on the showing that the People made at the preliminary hearing.
A. Legal Standards
” ’ ” ‘As in any case involving statutory interpretation, our fundamental task . . . is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible.’ ” (People v. Gonzalez, supra, 2 Cal.5th at p. 1141.) “If the language of a statutory provision remains unclear after we consider its terms, structure, and related statutory provisions, we may take account of extrinsic sources—such as legislative history—to assist us in discerning the relevant legislative purpose.” (Gund v. County of Trinity (2020) 10 Cal.5th 503, 511; see People v. Valencia (2017) 3 Cal.5th 347, 357–360.)
B. Count 1: Violation of Section 136.1, Subdivision (b)(1)
Among the overlapping statutes in Part I, Title 7, Chapter 6 of the
Subdivision (b) of
The issue before us is whether
Based on the text and structure of the statute, there are reasonable arguments going both ways.
According to the People, the statute on its face proscribes attempts to dissuade a “victim” or a “witness” from reporting (
Factually, the People take issue with Reyes‘s reading of the record, pointing out that Jacques‘s conduct may not be neatly divisible into past, completed crimes on the one hand, and separate and unrelated possible future crimes on the other. Instead, they urge us to apply the principle that, in reviewing the magistrate‘s order holding Reyes to answer on Count 1, we must draw all reasonable inferences in favor of the information (People v. Garcia (2018) 29 Cal.App.5th 864, 871), and the evidence supports the view that Jacques‘s abuse of Evelyn was an ongoing course of conduct. If an attempt to dissuade a victim or witness from reporting such conduct violates
Even accepting the premise of the People‘s argument that we are bound to read the record in their favor, as we must, we are still left with uncertainty in applying the opaque statutory term “that victimization” (
Reyes does not dispute the importance of the overall objective urged by the People, but argues that casting the issue at such a broad level of generality brings no clarity to what we must decide. Just the opposite, he contends, by accepting the People‘s reading of the statute, we would not be advancing this statutory purpose, but placing within its scope an impossibly difficult-to-define range of statements made to potential victims who have not yet been victimized and to potential witnesses who have not yet witnessed victimization. (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1167 [” ‘[N]o statute . . . pursues its “broad purpose” at all costs.’ “]; ibid. [” ’ “[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute‘s primary objective must be the law.” ’ “].)
Pitted against Reyes‘s claim that we should not assume the Legislature meant
But we find this principle ultimately unhelpful in resolving the issue before us. In concluding that dissuasion under
Of course, the perpetrator of the underlying criminal conduct may in some cases be the same person alleged to have done the dissuading (e.g., People v. Torres, supra, 39 Cal.App.5th at p. 858), but that will not always be true, and it is not true here. More importantly, whether or not the same person is the underlying perpetrator and the dissuader, the relevant statutory language covering the two types of conduct, as we have noted, is different. While the terms “prevent” and “dissuade” (
And as discussed above, there is a strong textual argument that it does not. This portion of
In addition to his textual argument, Reyes invokes due process principles. In support of his position that both counts of the information were properly dismissed, he contends that no provision of the witness tampering statutory scheme applies, that what he is charged with falls within the gaps in the scheme, and that, to accept the People‘s position, on either count, would raise serious due process concerns. According to Reyes, no California appellate court has ever addressed the issue presented on the facts of this case, and “[t]o [his] knowledge, no one has ever before been charged in California with a violation of [section 136.1, subdivision (b)(1),] arising solely from a circumstance in which the defendant allegedly sought to dissuade a witness from reporting a crime that had not yet occurred.”8 To resolve this issue against him on this record under either statute, Reyes argues, would be such an unforeseeable and unexpected result as to violate due process.
In granting Reyes‘s
After being convicted of multiple crimes, including witness dissuasion in violation of
16 Cal.App.5th at pp. 32, 40-41), the defendants in Pettie argued there was insufficient evidence supporting the dissuasion charges because “the only evidence of an attempt by Delgadillo to report to the police had already happened, such that the evidence could only show defendants were punishing him for making a past report” (id. at p. 54). The appellate court disagreed, stating: “[G]iven the evidence that Lanford questioned Delgadillo about calling the police and the evidence he was called a ‘cop caller’ just before the attack, a jury could reasonably infer defendants were attempting to prevent him from making future reports to the police.” (Ibid.)
The Pettie court stated: “Proof of an attempt to prevent any future report to the police was sufficient to satisfy the statute.” (Pettie, supra, 16 Cal.App.5th at pp. 54-55; accord, People v. Wahidi (2013) 222 Cal.App.4th 802, 806 [“If the defendant‘s actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the witness from testifying, the offense has been committed.“]; see People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344-1345 [the defendant‘s words not only expressed dissatisfaction with witness‘s past testimony but also attempted to dissuade her from giving any further testimony in the future]; People v. Ford (1983) 145 Cal.App.3d 985, 989 [jury could interpret defendant‘s statement “as a warning or threat not to testify in the future“].)
Broadly read, Pettie and Mendoza do offer a rough analogy—since they involve dissuasion of future reports—but their holdings can be taken only so far because, as Reyes points out, on their facts those cases involved past crimes. (See Pettie, supra, 16 Cal.App.5th at p. 33; People v. Mendoza, supra, 59 Cal.App.4th at pp. 1337, 1344-1345.) According to him, these cases may be reconciled with his reading of
Though we are unconvinced that this case presents an issue of constitutional magnitude, we have no doubt that
Applying the rule of lenity as a tool of last resort, we therefore affirm the superior court‘s ruling that
C. Count 2: Violation of Section 137, Subdivision (b)
With little explanation, the superior court dismissed count 2, alleging a violation of
1. The Statute Applies to Reyes‘s Alleged Conduct
Count 2 of the information charged Reyes with a violation of
On its face, the language of
Reyes relies principally on People v. Womack (1995) 40 Cal.App.4th 926 (Womack). In that case, the defendant and an accomplice brutally attacked a witness, and the defendant was convicted of attempted murder and a violation of
The Womack court stated: “The entire sense of Penal Code section 137 is that testimony will be given, but the perpetrator will attempt to influence the testimony given.” (Womack, supra, 40 Cal.App.4th at p. 930.) In contrast, the court stated, both
The court in People v. Fernandez (2003) 106 Cal.App.4th 943 (Fernandez) discussed the interpretive approach adopted in Womack, noting that Womack “narrowly construed section 137” to avoid an interpretation that would result in sections 136.1 and 138 being “mere surplusage.” (Fernandez, supra, at p. 949.) The Fernandez court continued: “The Womack decision is significant . . . because the court refused to stretch the language of the statute at issue to cover the defendant‘s conduct when another statute within the same chapter of the Penal Code clearly applied.” (Ibid.) In Fernandez, the court, relying in part on this principle, declined to interpret
Womack and Fernandez do not persuade us that we should construe
More pertinent than Womack and Fernandez is People v. Pic‘l, supra, 31 Cal.3d at pp. 735, 742 & fn. 5, where our Supreme Court held that evidence showing the defendant sought to bribe a victim not to testify at all also supported a charge that he sought to “influence” the victim‘s testimony. The defendant in Pic‘l, an attorney, met with a theft victim, who signed a written agreement (drafted by the defendant) not to pursue charges if his property was returned. (Id. at pp. 735-736.) The defendant was charged with multiple offenses, including two bribery charges: (1) former section 136½, bribing a
The superior court in Pic‘l dismissed the bribery charges under
Turning to the
At oral argument, Reyes‘s counsel described this passage in Pic‘l as “loose language.” We think that underplays its significance. ” ‘Even if properly characterized as dictum, statements of the Supreme Court should be considered persuasive.’ ” (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169; accord People v. Trice (1977) 75 Cal.App.3d 984, 986-987 [“Whether the Supreme Court‘s obvious awareness of the consequences of its statement elevates the dictum to a holding or whether it is a dictum that we must follow, does not make much difference. We follow.“].) Just as
2. Due Process
Reyes contends that, in light of Womack and other case law construing
The language of
Moreover, none of the cases cited by Reyes—Womack, Fernandez, and People v. Brown (2016) 6 Cal.App.5th 1074—holds that
This is a troubling case for a number of reasons, starting with the fact that we are dealing with criminal charges brought by a county prosecutor against a deputy public defender who regularly appears as an adversary against the office that charged him. The stakes are high for this lawyer. Conceivably, a final conviction on the remaining
Our reversal as to the
Few may remember the case of the real-life Ray Donovan (not the figure in the TV show of the same name), who served as Secretary of Labor under President Ronald Reagan. Secretary Donovan was indicted in New York State for alleged corruption linked to organized crime after a federal special prosecutor found there was insufficient credible evidence to support the charges, but a county prosecutor tried him anyway. In a press conference following his acquittal, when reminded that the office of the special prosecutor found the evidence against him wanting, Donovan plaintively asked, ” ‘Which office do I go to to get my reputation back?’ ” (Raab, Donovan Cleared of Fraud Charges by Jury in Bronx; For Ex-Cabinet Member, End of ‘Nightmare‘—One-Ballot Verdict, N.Y. Times (May 26, 1987) pp. A1, B2.) In the event Reyes, too, is acquitted, he could find himself in a similar position, unless there is more to this case than meets the eye. And during the pendency of the case, he will remain under a cloud, since he has a mandatory obligation to report the charges, and he must deal with whatever inquiries the State Bar may approach him with.
Rule 3.8 of the State Bar Rules of Professional Conduct is entitled “Special Responsibilities of a Prosecutor.” Under subdivision (a) of that rule, a prosecutor shall “not institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause.” (Fn. omitted.) On the evidence presented at the preliminary hearing, we see no basis to question the subjective good faith of the prosecutor who elected to bring the charges against Reyes in this case. But it must be borne in mind that rule 3.8 is subject to the overarching precept—cited in a comment to the rule providing interpretive guidance—that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” (Rules Prof. Conduct, rule 3.8, com. [1].)
“The importance, to the public as well as to individuals suspected or accused of crimes, that [the prosecutorial function] be exercised ‘with the highest degree of integrity and impartiality, and with the appearance thereof’ [citation] cannot easily be overstated. The public prosecutor ’ “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” ’ ” (People v. Eubanks (1996) 14 Cal.4th 580, 589 (Eubanks).)
Before the magistrate in this case, Reyes‘s counsel opened the proceedings with a suggestion that this case could have been “easily resolved” had it not been for a “hostile climate” between the prosecutor‘s office and the office of the public defender. The magistrate, quite correctly, took that comment as zealous argument directed to the atmospherics of the proceeding, not something that bore on the issues to be decided at the preliminary hearing. But if, as things unfold in the case on remand, it turns out there is substance to the suggestion Reyes‘s counsel made, his argument may point up a number of issues touching on why these particular charges were brought in the first place, and whether their pursuit is consistent with the prosecutorial duty to see that ” ’ “justice shall be done.” ’ ” (Eubanks, supra, 14 Cal.4th at p. 589.)
It goes without saying that personal bias or animosity must never play a part in the exercise of prosecutorial charging discretion. Indeed, that was the starting point of analysis in Eubanks, an opinion authored by Justice Werdegar addressing the issue of prosecutorial conflicts of interest. Eubanks teaches that the potential for such conflicts can arise in circumstances where a prosecutor‘s judgment is “impaired by institutional interests” as well as “by personal ones.” (Eubanks, supra, 14 Cal.4th at p. 595.) “[A] prosecutor may [also] have a conflict if institutional arrangements link the prosecutor too closely to a private party, for example a victim, who in turn has a personal interest in the defendant‘s prosecution and conviction.” (Id. at p. 596.)
“As Judge Friendly put it in Wright v. United States [(2d Cir. 1984) 732 F.2d 1048, 1056], a prosecutor ‘is not disinterested if he has, or is under the influence of others who have, an axe to grind against the defendant.’ [Italics omitted.] The tie that binds the prosecutor to an interested person may be compelling though it derives from the prosecutor‘s institutional objectives or obligations.” (Eubanks, supra, 14 Cal.4th at p. 596.) And when one adds to that the special problems that necessarily attend the prosecution of a defense lawyer who is currently adverse to the charging office, for conduct arising out of an ongoing client representation—which creates a risk that the prosecution may undermine the Sixth Amendment rights of that lawyer‘s client—the scenario we have in this case presents a thicket of prosecutorial ethics concerns.
Rule 3.8 of the Rules of Professional Conduct on its face sets such a low bar that if the paramount duty of prosecutors to see that ” ’ “justice shall be done” ’ ” (Eubanks, supra, 14 Cal.4th at p. 589) is not kept in mind as an accompanying standard, the heightened level of ethical obligation surrounding prosecutorial charging discretion may be treated as if it does not exist. Which is why we mention it here. “The boundaries of proper professional conduct for prosecutors can be debated, and in the absence of a judicial pronouncement, prosecutors acting in good faith can contravene whatever standards the courts would have chosen. Indeed, prosecutors may even be misled by the existing disciplinary provisions to believe that courts expect less of them than they actually do.” (Green, Prosecutorial Ethics as Usual (2003) U.Ill. L.Rev. 1573, 1597.)15
“The nature of the impartiality required of the public prosecutor follows from the prosecutor‘s role as representative of the People as a body, rather15
than as individuals. ‘The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of “The People” includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name.’ (Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 538-539.)” (Eubanks, supra, 14 Cal.4th at pp. 589-590.)
These eloquent statements of what we expect from prosecutors, coming from several of our most esteemed jurists, must not be taken as mere words. They must be put into action, internally within prosecutorial offices, by asking hard questions about whether charges should be brought or continued, and perhaps in some cases—which we would urge in this case—by soliciting a second opinion from the office of the Attorney General or from another county prosecutor. Among the questions that should be asked here include whether bringing charges against a lawyer who is adverse to the charging office at the time charges are brought may carry the appearance of bias, and whether—in light of the state of the evidence—the
Now, we readily grant that any calculated interference with the carrying out of law enforcement functions can have very serious public safety16
implications. And given the danger Evelyn faced from her son the night of August 25, 2018, and the early hours of the next day, that is an important consideration in this case. So we certainly do not mean to suggest that the questions we raise here may only be answered by concluding that a continued prosecution of the
We will put our concern plainly. We have no idea whether, before bringing felony charges, there was an effort by this district attorney to address perceived improper interference with victim reporting by Reyes, informally, through dialogue with the public defender and a demand for internal discipline, or by exploring whether contempt or other sanctions from the superior court might be sought first (since the alleged conduct, if it indeed took place, undermined a protective order). But regardless, given the gravity of Reyes‘s exposure on the
IV. DISPOSITION
The superior court‘s order granting Reyes‘s
STREETER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
POLLAK, P. J., Concurring.
Although I agree that the lenity principle supports the trial court‘s order dismissing the
The principle of lenity arguably might apply to the alleged violation of
POLLAK, P. J.