People v. Thomas

• Decision Date: 19 July 1978
• Docket Number: Cr. 31935
• Citation: People v. Thomas, 148 Cal.Rptr. 52, 83 Cal.App.3d 511 (Cal. App. 1978)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Roy Gene THOMAS, Defendant and Respondent.

Page 52

148 Cal.Rptr. 52

83 Cal.App.3d 511

The PEOPLE of the State of California, Plaintiff and Appellant, v.Roy Gene THOMAS, Defendant and Respondent.

Cr. 31935.

Court of Appeal, Second District, Division 2, California.

July 19, 1978.

John K. Van DeKamp, Dist. Atty., Los Angeles, for plaintiff and appellant.

Seymour R. Holtzman, Los Angeles, for defendant and respondent.

ROTH, Presiding Justice.

RespondentRoy Gene Thomas was charged by information with violating Penal Code sections 136,137.¹His motion to set aside the information (Pen.Code, § 995) was granted and the People appeal.

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.²Georgia 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, 1977.³Respondent 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 motionthe 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.(P) 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.(P) 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.(P) 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 with doing so and so.You're lying.I'm going to beat the crap out of you the next time I see you.'That is an attempt to dissuade a witness from testifying in court, and I can't see it. . . ."This conclusion was erroneous.

"3] 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 on all reviewing judicial officers.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.As long as his words or actions support the inference that he(1) sought to prevent or dissuade a potential witness from attending upon a trial (Pen.Code, § 136, subd. (b)) or (2) attempted by threat of force to induce a person to withhold testimony (Pen.Code, § 137, subd. (b)), a defendant is properly held to answer.

4] The rules governing review of a magistrate's determination that an offense has been committed and there is sufficient cause to believe the accused guilty thereof are well known and need not be repeated.(E. g., People v. Martinez, 75 Cal.App.3d 859, 863, 142 Cal.Rptr. 515;People v. Heard,266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374.)In the present case, the magistrate reasonably concluded that respondent's comments, uttered in a loud, clear, and angry manner, were calculated to discourage Mrs. Modock from attending and testifying at the trial in Department 23....