• P.C. § 136.1(b)(1): Dissuading a Victim or Witness from Reporting a Crime
• P.C. § 137(b): Inducing a Witness to Withhold Information
• Witness Tampering
• The Rule of Lenity
• Due Process and Notice of Criminal Conduct

A defense attorney misrepresenting himself to be a deputy district attorney, while telling a person to contact him instead of the police should she be victimized by the attorney’s client in the future, may or may not be a violation of P.C. § 136(b)(1); Dissuading a Victim or Witness from Reporting a Crime.  Therefore, due to the ambiguity of whether P.C. § 136(b)(1) applies to crimes that have not yet occurred, the Rule of Lenity dictates that the defendant be given the benefit of the doubt, protecting him from being criminally charged.  Such an act, however, is a crime under P.C. § 137(b); Inducing a Witness by Fraud to Withhold Information.

Defendant Octavio Joseph Reyes was a Solano County Public Defendant with less than three years on the job when he was assigned to represent one Jacques Olivas.  Olivas was charged with abusing his mother and resisting arrest.  Defendant negotiated a plea deal on June 13, 2018, where Jacques Olivas pled “no contest” to the resisting arrest charge (per P.C. § 148(a)(1)), with all other charges dismissed.  Put on probation, Olivas was ordered as a condition of his probation not to annoy, harass, or threaten his mother (Evelyn Olivas) and not to have any uninvited contact with her.  It took less than two weeks (June 26) for Olivas to be returned to court with new charges filed and an allegation that he had violated his probation.  On July 3rd, defendant worked another plea deal for Olivas where he admitted to the probation violation with the new charges being dismissed.  Probation was reinstated with a new and revised protective order.  Under this order, Olivas was to stay 100 yards away from his mother, and to stay away from her home.  He was also not to have any personal, electronic, telephonic or written contact with her, or any contact through a third party “except any attorney of record.” This worked until August 28th, when new charges were filed (see below).  In the meantime, DA Investigator Jerry Sanchez interviewed Olivas’ mother, Evelyn.  She told him that on July 3, 2018, she received a call on her cellphone from defendant Reyes.  Defendant identified himself as “Jacques’s district attorney.”  He provided Evelyn with his e-mail address and telephone number, and told her that her son (Jacques Olivas) was going to be released that day.  Evelyn told Investigator Sanchez that defendant told her that “if (Jacques) was near her home or at her home, not to call the police,” but instead “to call (defendant Reyes).”  As a result of these instructions, Evelyn sent an e-mail to defendant on July 11th, to which she attached a letter to her son, Jacques.  (Other than this, the record on appeal did not reflect what was in the e-mail or the letter, or any other information Evelyn might have passed onto defendant.)  Defendant responded, saying he would “review these documents and get back to you.” Defendant also asked Evelyn for the phone number of Jacques’ former girlfriend, Darla Estes, with whom he had a child.  Evelyn responded with an e-mail providing defendant with Estes's phone number.  Darla Estes was also interviewed by Investigator Sanchez, who told him that defendant “told her to tell Evelyn not to call the police if the restraining order was violated, to call him.”  On July 12th, Evelyn sent defendant another e-mail with an attached letter, the letter being addressed to “Joseph Reyes, district attorney.”  There was no evidence indicating whether or not defendant had read this e-mail or whether he ever responded to it.  Despite defendant’s instructions not to call the police, Evelyn called them anyway shortly after midnight on August 26th as her son (Jacques) attempted to get into her mobile home.  Jacques Olivas was arrested by responding police at the scene, and after a struggle.  Evelyn reported to the police that the trailer park manager told her several days earlier that Jacques had been “lingering in the trailer park that day.”  After Jacques’ arrest on the 16th, Evelyn told the officers that she had not called the police on August 24th, when the trailer park manager told her about her son “lingering” at the trailer park, because “the district attorney had told her not to call the police if (he) violated the restraining order, but to call him instead.” Evelyn later repeated this allegation to Investigator Sanchez, adding the fact that she had tried to call defendant after hearing that her son was seen lingering in the trailer park, but was unable to reach him.  After her son’s arrest on the 26th, she send defendant another e-mail, again attaching a letter which was addressed to “Joseph Reyes, district attorney.”  Defendant did not respond to this e-mail, and there was no evidence that he’d received or read it.  Defendant was later charged in state court with what was collectively referred to as “witness tampering;” i.e., P.C. § 136.1(b)(1); attempting to dissuade a victim or witness to a crime from reporting that victimization to law enforcement, and P.C. § 137(b); attempting to induce a person “by the use of fraud” to “withhold . . . true information pertaining to a crime” from law enforcement (this latter charge being added to the information filed in Superior Court after defendant had been held to answer to the P.C. § 136.1(b)(1) charge by the magistrate following a preliminary examination).  Defendant filed a P.C. § 995 motion in Superior Court, moving to dismiss both charges.  The Superior Court judge granted defendant’s motion as to both counts.  The People appealed.

The First District Court of Appeal (Div. Four) upheld the Superior Court’s ruling as to the dissuading count (i.e., P.C. § 136(b)(1)), but reversed as to the use of fraud to withhold information charge (i.e., P.C. § 137(b)).  On appeal, defendant defended the order of dismissal arguing that (1) his alleged conduct did not constitute a crime under either of the statutory provisions at issue, and (2) prosecuting him for a violation of these two statutes violates his due process rights. 

(1)  Penal Code § 136.1(b)(1):  This section provides in part:  “(b) . . . (E)very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense . . . : [¶] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.” The section, being a “wobbler” (i.e., with both felony and misdemeanor punishments), it was charged against defendant as a felony.  In order to prove such an offense against defendant, the People must be able to prove “(1) the defendant . . . attempted to prevent or dissuade a person (2) who is a victim or witness to a crime (3) from making any report of his or her victimization to any peace officer or other designated officials.”  The issue before the Court was whether, by its terms, this offense was intended by the Legislature to apply only to completed crimes.  With it being alleged here that defendant told Evelyn Olivas not to report any future offenses committed by her son, Jacques, to the police, the People argued that section 136(b)(1) should be interpreted to apply to future crimes as well.  In an attempt to resolve this issue, the Court had to engage in a long discussion of statutory interpretation.  In so doing, the Court was unable to determine from the statute’s wording, nor find any prior case authority as well as any hint from the Legislature, which way to go (eating up some six pages of text in reaching this non-conclusion, a discussion of with which I need not bore you).  Therefore, because the issue could not be resolved, the Court held that it would be unfair to expect defendant to know that what he did (or was alleged to have done) violated P.C. § 136(b)(1).  This results in “one of those rare cases where the rule of lenity applies.”  Under the “rule of lenity,” any “ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant the benefit of every reasonable doubt on questions of interpretation. . . . ‘[The] rule applies “only if two reasonable interpretations of the statute stand in relative equipoise.”’”  (See People v. Nuckles (2013) 56 Cal.4th 601, 611.)  (“Equipoise,” by the way, means to counterbalance, or a state of equilibrium.  I had to look it up.)  Therefore, giving defendant the benefit of the doubt, the Court sustained the trial court’s dismissal of the P.C. § 136(b)(1) charge. 

(2)  Penal Code § 137(b):   P.C. § 137(b) provides as follows: “Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official is guilty of a felony . . . .” (Italics added.) The People argued that defendant used fraud (i.e., he told Evelyn he was a district attorney) to induce her to withhold information from law enforcement.  Disagreeing with the trial court, the Appellate Court held that on its face, this section applies to defendant’s alleged conduct; i.e., that he allegedly lied about his profession—claiming to be a deputy district attorney—to induce Evelyn not to call the police and provide them with information about Jacques’s criminal conduct.  In so concluding, the Court rejected defendant’s argument that section 137(b) should be interpreted to apply only to an attempt to influence the content of a witness or victim’s testimony or reports to law enforcement, and does not prohibit an attempt to dissuade or prevent a person from testifying or reporting to police someone’s illegal acts altogether.  The Court found support in its conclusions from the California Supreme Court in the case of People v. Pic’l (1982) 31 Cal.3rd 731, at pages 735 and 742 and footnote 5, where it was held that: “It is apparent that an inducement to withhold testimony is a form of the ‘influence’ of testimony prohibited in [section 137,] subdivision (a).” (Id. at p. 742, fn. 5.) The (Supreme) (C)ourt then concluded: “The grand jury had probable cause to believe that defendant intended to influence [the victim’s] testimony by way of persuading him to withhold it altogether, . . .”  The Appellate Court here held that the same reasoning applies to subdivision (b) of section 137: “(I)n our view, the analysis employed by the Pic’l court applies here to section 137, subdivision (b)’s prohibition on the use of fraud to attempt to ‘induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official.’ (Italics added)  Here, too, it may be said, the prohibition of an inducement to ‘withhold’ information encompasses both attempts to influence the substance of reports as well as to withhold reports altogether.”

As for the strength of this case should it actually go to trial, it’s clear that Evelyn Olivas really believed that defendant was a representative of the District Attorney’s Office.  But whether or not defendant actually told her that he was a district attorney is likely to be a serious issue.  It’s been my experience that people who are unfamiliar with the criminal justice system really don’t listen to, and can easily misinterpret, what they are told when confronted with someone in government service like the defendant here.  The distinction between being a public defender and a deputy district attorney is easily lost on someone unfamiliar with how the system works.  It’s arguable that she really did not understand the difference between the two. But if defendant actually did misrepresent himself to be a deputy district attorney when attempting to convince her to contact him instead of the police, how stupid can you be   But even if he didn’t tell Evelyn Olivas that he was a deputy district attorney, why (other than to shield his client from another revocation) would he tell her to call him instead of the police   Aside from the potential criminal liability, what if Jacques had hurt or, worse yet, killed Evelyn because the police were not called   Inexcusable!  If defendant actually told Evelyn not to call the police (which, again, he denies despite some good evidence that he did), even if not convicted criminally, he should probably be reported to the State Bar.