Majority
Opinion
J.—Respondent Roy Gene Thomas was charged by information with violating Penal Code sections 136, 137.[1] His motion to set aside the information (Pen. Code, § 995) was granted and the People appeal.
1 Penal Code section 136, subdivision (b), provides in pertinent part as follows: “Every person who willfully and unlawfully prevents or dissuades by means of force or threats of unlawful injury to person or property, any person who is or may become a witness, from attending trial, proceeding, or authorized law, is . . . .” Penal Code section 137, subdivision (b), provides, in pertinent part as follows: “Every person who attempts by force or threat of force or by the use of fraud to induce any to false or withhold true is of a As-used *513 in this subdivision, ‘threat of force’ means a credible threat of unlawful injury to any person or property which is communicated to a person for the purpose of inducing him to give false testimony or withhold true testimony.”
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
2 Georgia Modock’s son “was going with Louise [Thomas], his [respondent’s] mother.”
3 That Mrs. Modock had been called and testified on June 21, 1977, does not, as respondent contends, compel the conclusion that she was not going to be called as a witness or that she had been excused as a witness. Thus respondent’s argument that she “could not be ‘persuaded or dissuaded’ from doing that which she had already done” is based upon the false premise that she was not a potential future witness. Respondent’s motion to augment the record to include a reporter’s transcript of the proceedings which occurred in Judge Greenfield’s chambers immediately after the subject incident which, according to respondent, would show that Mrs. Modock’s attendance at the trial on June 22, 1977, was in a nonwitness capacity, is denied. Neither this transcript nor the events which are assertedly memorialized therein was presented to the magistrate. They are, therefore, not only outside of the record on appeal (People v. Dobson, 12 Cal.App.3d 1177 , 1182 [ 91 Cal.Rptr. 443 ]; People v. Tiffith, 12 Cal.App.3d 1129 , 1135 [ 91 Cal.Rptr. 176 ]), but they are also inapposite to the question of the correctness of the magistrate’s decision that appellant should be held to answer.
“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.
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.
The order of dismissal is reversed.
Fleming, J., and Compton, J., concurred.
Cases cited
- People v. Martinez 75 Cal.App.3d 859 at 863 p. 514
- People v. Heard 266 Cal.App.2d 747 at 749 p. 514