People v. Thomas

California Court of Appeal Jul 19, 1978 No. Crim. 31935Published

Before: Roth

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Holding. The court held that a magistrate's determination that a defendant's words or actions were intended to dissuade a witness from testifying is binding on reviewing courts if supported by substantial evidence.

Issues

Whether a magistrate's finding that a defendant's conduct was intended to dissuade a witness is binding on review when supported by substantial evidence.
Whether a defendant must explicitly state 'don't testify' to be held to answer for dissuading a witness under Penal Code sections 136 and 137.

Disposition. reversed

Quotations verified verbatim against the opinion

“Where, as here, the magistrate, sitting as the trier of fact, impliedly determines that words or actions are intended to prevent or dissuade a potential witness from testifying, such finding, when supported by substantial evidence, is binding”

“There is, of course, no talismanic requirement that a defendant must say “Don’t testify” or words tantamount thereto, in order to commit the charged offenses.”

Opinion

ROTH, P. J.

J.—Respondent Roy Gene Thomas was charged by information with violating Penal Code sections 136, 137.

His motion to set aside the information (Pen. Code, § 995) was granted and the People appeal.

[513]

The People introduced the following evidence at the preliminary hearing: Respondent's mother, Louise Thomas, was on trial in Department 23 of the Los Angeles Superior Court, in connection with the shooting of Georgia Modock's son.

Georgia Modock had been told by a police officer that she was going to testify in the proceedings and was seated in the hallway outside Department 23 on June 22, l977.

Respondent entered Department 23, looked at Mrs. Modock, pointed at her, and in a loud, clear, and angry voice said, according to her testimony, "that he was going to kill my mother-fucking ass and he was going to fuck me up," and "`You put my mother in jail, you had my mother picked up.' " Mrs. Modock immediately reported the incident to a deputy sheriff in the hallway and respondent was arrested.

In granting the Penal Code section 995 motion the court said, “Well, don’t get me wrong, Mr. Sweeters [deputy district attorney]. I don’t condone any action from which you can draw a reasonable inference that it’s an attempt to dissuade a witness from testifying. [If] The integrity of the court system must be upheld. And although I would say that there is some suspicion, I don’t think it even rises to the level of a reasonable suspicion based upon the fact that Mr. Thomas’s conduct was for the purpose of dissuading the witness from testifying. [If] What he did is censurable. What he did was wrong. What he did was a lack of control that supposedly differentiates human beings from animals. [If] But if I accede to the argument that you’re making, I would then have to say that if an individual is accused of a crime, if B is accused by A of a crime and B’s brother calls up A on the phone and says, ‘You charged my brother

People v. Thomas

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ROTH, P. J.

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