(Santa Clara County Super.Ct.No. CC598686) Trial Court: Santa Clara County Superior Court No. CC598686 Trial Judge: Hon. Andrea Y. Bryan
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
In April 2008, this court reversed the judgment entered against defendant Augustin Santillah Uribe, who had been convicted two years earlier of sex crimes involving his granddaughter, Anna. (People v. Uribe (Apr. 24, 2008, H030630) [nonpub. opn.] (Uribe).)*fn1 Our reversal was based on the failure of the Sexual Assault Response Team (SART) to disclose to the defense a videotape of a medical examination of Anna. There was no suggestion from the record in that case that the prosecutor himself knew about the videotape before defendant was convicted. We concluded, however, that the SART unit was part of the prosecution team, and therefore its nondisclosure of the videotape constituted Brady error (Brady v. Maryland (1963) 373 U.S. 83) that was prejudicial to the defense.
On remand, defendant filed a motion to recuse the Santa Clara County District Attorney's Office, claiming that the district attorney and members of the SART unit had conspired to violate state law by not documenting that the latter had videotaped its examinations of alleged victims of sexual assault, thereby preventing members of the defense bar from obtaining critical information in sexual assault cases. Defendant also filed a non-statutory motion to dismiss the information based upon the alternative grounds of double jeopardy and outrageous prosecutorial misconduct in violation of his due process rights. Defendant argued in the motion to dismiss that members of the SART unit and the prosecutor had been aware of the videotape at the time of the first trial and had suppressed it in order to thwart defendant's effort to obtain an acquittal.
After extended evidentiary hearings and briefing on the motions, the court denied the motion to disqualify the district attorney. It denied the motion to dismiss made under double jeopardy principles, but it granted the motion on the ground of prosecutorial misconduct. The court concluded that Troy Benson, the deputy district attorney who had prosecuted the first trial, had testified untruthfully in the hearings on the motions. In a strongly worded opinion, the court found the existence of "egregious prosecutorial misconduct committed following reversal for a Brady violation [that was] . . . so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed." (Original italics.)
The People contend that the court erred in dismissing the information. We agree. A court may dismiss an information in an extreme case to address outrageous governmental conduct. A prosecutor's false testimony in any court proceeding is a grave affront to the judicial system. It is undoubtedly an act that is "outrageous" in a general, non-constitutional sense. When such prosecutorial misconduct impairs a defendant's constitutional right to a fair trial, it may constitute outrageous governmental conduct warranting dismissal. But here the false testimony occurred in a peripheral hearing and was not shown to have prejudiced defendant's right to a fair trial. The misconduct thus did not constitute outrageous governmental conduct in violation of due process. Accordingly, while we acknowledge the trial court's understandable and profound concern about the former prosecutor's misconduct, including his false testimony, the court chose the wrong remedy. We will reverse the dismissal order.
Defendant was charged by a second amended information filed in February 2006 with five felony sex offenses against Anna, namely, three counts of aggravated sexual assault of a child (violation of Pen. Code, § 269; counts 1 through 3),*fn2 and two counts of lewd or lascivious acts on a child (violation of § 288, subd. (a); counts 4 and 5). A jury trial commenced in February 2006 before the Honorable Paul Bernal. We summarize relevant evidence from the prior trial in the succeeding two paragraphs.*fn3
Anna, defendant's granddaughter, was 12 years old and was attending the seventh grade at the time of the trial. She testified that on one occasion before she started kindergarten, her grandfather went into her room and digitally penetrated her vagina. In another incident when Anna was five, defendant came into the living room where she was sleeping, lay down next to her, removed her clothes, and had forcible sexual intercourse with her. When Anna was nine and on a family trip to Tijuana, defendant lay down next to her in the back of his van, pulled her pants and underwear down, and had forcible intercourse. And when Anna was 11 years old, defendant had her sit on his lap, put his hand under her pants and panties, and digitally penetrated her vagina.*fn4
There was a significant amount of medical testimony at the trial. (See Uribe, supra, H030630, slip opn. at pp. 16-23 [nonpub. opn.].) Mary Ritter, a physician's assistant and clinic coordinator at the Center for Child Protection (Center) in the Santa Clara Valley Medical Center (Valley Medical), conducted a SART examination of Anna in July 2005. She used a colposcope, which has a camera attached to it that permits the examiner to take magnified photographs. Several photographs taken by Ritter during her examination of Anna were introduced as exhibits. Ritter opined that there was a V-shape configuration indicating that there had been a prior hymenal tear consistent with the occurrence of a penetrating event. A defense expert, Dr. Theodore Hariton, a retired obstetrician and gynecologist, opined, based upon records and photographs from the SART exam, that "with reasonable medical certainty this [penetrating trauma] did not happen." He relied in particular on one photograph, defense exhibit I, as depicting what "can well be a normal hymen." Dr. David Kerns--a pediatrician and the Center's medical director--testified in rebuttal "that there was definite physical evidence of penetrating trauma to [Anna's] hymen." Dr. Kerns singled out one particular photograph in support of his conclusion. He also testified that the photo exhibit on which Dr. Hariton had relied was a bad photo and did not even depict the patient's hymen.
On March 3, 2006, the jury convicted defendant on counts 2 through 5 and acquitted him on count 1.
II. Posttrial Proceedings
Defendant filed a motion for new trial on the basis of newly discovered evidence (i.e., the SART video). The motion was based in part upon the declaration of defense counsel, Alfonso Lopez, who declared that he had (1) made a written pretrial request to Benson for all photos and documentation relating to the SART exam; (2) filed a pretrial motion to release documents subpoenaed from Valley Medical concerning Anna; (3) received, before trial, a medical report, photos and laboratory findings concerning the SART exam (but no videotape); (4) spoken with Ritter on March 26, 2006 (after the verdict), and she had informed him that she was in possession of a videotape of Anna's SART exam; and (5) subpoenaed and obtained the videotape of the SART exam after his conversation with Ritter. Defendant argued that the prosecution should have disclosed the video pursuant to Brady, supra, 373 U.S. 83.
The court denied the motion for new trial. It also denied a second new trial motion that had been filed by defendant on the basis that Anna had signed a declaration completely recanting her charges of molestation.
In August 2006, defendant was sentenced to a prison term of 30 years to life.
On April 24, 2008, we reversed the judgment on the basis that the nondisclosure of the SART video constituted a Brady violation that was prejudicial to defendant. We concluded that Valley Medical personnel who had performed the examination of Anna and created the undisclosed SART video were "part of the 'prosecution team' for Brady purposes. [Citations.] Their knowledge of the existence of the SART video was thus imputed to the prosecution." (Uribe, supra, 162 Cal.App.4th at p. 1481.) We held further that because "[t]he SART video was favorable to the defense [a]nd . . . constituted suppressed evidence under Brady . . . [, and because] our confidence in the outcome of the trial [was] undermined by the suppression of this evidence by the prosecution" (id. at p. 1482), the Brady violation compelled reversal of the judgment. (Ibid.)
IV. Proceedings on Remand
In January 2009 (after the case was remanded), defendant filed a motion to dismiss the information on the basis of double jeopardy and prosecutorial misconduct. He alleged that the district attorney, Ritter, and Kerns were all aware of the existence of the videotape of Anna's SART exam "and chose to withhold that evidence and make misrepresentations during [the] testimony [of Ritter and Kerns] to keep the SART video suppressed." He contended further that "Dr. Kerns, in conspiracy with the prosecutor's office, did not want defense attorney[s] to muddy up the waters with  SART video[s because] . . . they were concerned that  SART video[s] would give defendants evidence that would exonerate them." Defendant argued that in light of the existence of the SART video, the trial testimony of Dr. Kerns--in which he strongly criticized Dr. Heriton's opinions because he had relied on an allegedly unreliable photograph--was false. In a supplemental filing, defendant urged that the motion to dismiss should be granted based upon "outrageous prosecutorial misconduct at trial in violation of State and Federal Due Process." Defendant argued that the prosecutor's Brady error in failing to disclose the SART video that resulted in the reversal of the judgment of conviction here, "[a]lthough . . . a gross disregard for Mr. Uribe's due process rights, . . . [was] even more outrageous [in that the prosecutor and Dr. Kerns and Ritter] conspired to keep all SART videos suppressed between 1991 and 2006." He concluded that this " 'institutional prosecutor[ial] misconduct' " was so severe that dismissal of the information was warranted.
In February 2009, defendant filed a motion to disqualify the district attorney on the basis of conflict of interest, pursuant to section 1424. He alleged that Ritter, Kerns, and the prosecutor's office had "conspired to violate State law by not documenting SART exams on Office of Criminal Justice Planning 925 (Form 925)" for the purpose of concealing the fact that Valley Medical was videotaping SART exams of alleged sexual assault victims. He argued that the district attorney could "not prosecute [the] case fairly and even-handedly . . . [because] the prosecutor's office [was] part of a conspiracy to withhold evidence from defendant."
The People opposed the recusal motion and the motion to dismiss the information based on double jeopardy and outrageous prosecutorial misconduct.
The court conducted an evidentiary hearing over the course of 13 days spanning from March 2009 to January 2010. Substantial evidence was presented by the parties in six court sessions, which is described below.*fn5 After submission of the bulk of the evidence, on October 7, 2009, the court denied the motion to disqualify the district attorney. In so ruling, the court found "that there was no evidence presented to suggest that either Doctor Kerns or Miss Ritter conspired with any current or former member of the Santa Clara County District Attorney's Office to conceal or withhold the subject [SART exam] videotapes from disclosure." It found further "that there was no evidence presented to suggest that either the current or the former [d]istrict [a]attorney, [or] any member of either['s] executive management staffs, had actual knowledge of the existence of any sexual assault examination videos prior to 2006." The court accordingly concluded that defendant had failed to show "the existence of either a conspiracy or a conflict of interest that would render it unlikely that defendant would receive a fair retrial."
After further briefing, argument, and submission of additional evidence, the court on January 6, 2010, denied the motion to dismiss based upon double jeopardy, and granted the motion to dismiss based upon prosecutorial misconduct in violation of due process. The court concluded in its formal order: "This Court is presently confronted with the rare and concerning case of egregious prosecutorial misconduct committed following reversal for a Brady violation. Mr. Benson's numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed. As such, defendant's motion to dismiss on due process grounds is granted." (Original italics.)*fn6
The People filed a timely notice of appeal from the dismissal order. The appeal from the order is proper. (§ 1238, subd. (a)(8) [order or judgment dismissing or otherwise terminating all or portion of action appealable by People]; see also § 1238, subd. (a)(1) [People may appeal order setting aside all or part of indictment, information, or complaint]; Bellizzi v. Superior Court (1974) 12 Cal.3d 33, 37, fn. 3 [People's appeal from dismissal of information due to noncompliance with discovery order proper].)
B. Evidence Presented at Hearing
Much of the testimony concerned the Center's practice of videotaping SART examinations; its use, documentation and retention of the videotapes; and any communications it had with the district attorney relating to the Center's videotaping practices. This evidentiary focus was in keeping with the defense theory for the motions that there was a conspiracy between the Center (Dr. Kerns and Ritter) and the district attorney to conceal the practice of videotaping SART examinations. The inquiry--analogous to the United States Senate Judiciary Committee's inquiry into the involvement of President Nixon in the Watergate scandal of the early 1970s*fn7 --was: What did the district attorney know about the Center's videotaping of SART examinations and when did the district attorney know about the practice? The bulk of the evidence presented therefore through the testimony of 19 witnesses*fn8 was related to the alleged awareness of district attorney personnel before March 2006 of the Center's practice of videotaping SART examinations.
As noted, the court did not find the existence of a conspiracy between the Center and the district attorney to conceal the practice of videotaping SART examinations, and it did not find that "either the current or the former district attorney, [or] any member of either['s] executive management staffs" knew about the Center's practice of videotaping SART examinations prior to 2006. The court's finding of prosecutorial misconduct was directed toward Benson alone, and the court made clear that this misconduct focused upon his having given false testimony during the hearing on the motions. Although the court did not specify the "numerous acts of misconduct" in its order or elaborate on its finding of the prosecutor's untruthfulness, there were several areas in which Benson's testimony was contradicted by others. These areas concerned (1) how Benson learned of the existence of a SART exam video in People v. Zeledon (a case that he handled before the Uribe trial; Zeledon); (2) how and when he learned about the SART video in Uribe, and whether he informed his adversary, Lopez, about the video's existence; (3) when he spoke with his supervisor and the head of the sexual assault unit, Victoria Brown, about having learned about the SART video in Uribe; and (4) whether he told Lopez after the Uribe appeal that he (Benson) was the one who allegedly first learned about the existence of the SART video.
As an aid to our discussion below of the testimony presented at the hearing, we present the following chronology:
July 29, 2005: Mary Ritter conducts SART exam of Anna.
January 12, 2006: Ritter provides Benson with video of SART exam of alleged victim in Zeledon.
February 1, 2006: Trial begins in Uribe.
March 3, 2006: Jury convicts defendant of four felonies.
March 22, 2006: Lopez learns from consultant that Anna's SART exam may have been videotaped.
March 28, 2006: [Lopez test.]: Lopez speaks to Ritter and learns for first time that Anna's SART exam was videotaped.
[Benson test.]: Benson speaks to Ritter about another case and she informs him that she videotaped Anna's SART exam. Benson immediately speaks to Brown about the video, and calls Lopez afterwards to tell him about existence of video.
March 29, 2006: Lopez signs declaration in support of issuance of subpoena for video, referring to March 28 conversation with Ritter.
March 30, 2006: Defense motion for issuance of subpoena for video is filed and served on district attorney.
April 4, 2006: Brown sends e-mail to members in her sexual assault unit about disclosing SART videotapes to defense counsel.
[Brown test.]: Memo sent the day of, or the day after she spoke with Benson.
[Benson test.]: Memo sent at least one week after he spoke to Brown.
April 7, 2006: Original date for sentencing in Uribe.
[Lopez test.]: Lopez informs court and Benson of discovery of SART video; Benson expresses surprise that Ritter had videotaped SART exams.
July 28, 2006: Court denies motion for new trial in Uribe.
February 7, 2008: [Benson test.]: Benson confirms with Lopez that Benson had first informed Lopez in March 2006 about existence of SART video.
[Lopez test.]: Benson, upset, approaches Lopez and asks him if he could provide Benson with a declaration. (No statement by Benson that he had first discovered the SART video.)
April 24, 2008: Court of Appeal reverses judgment of conviction in Uribe.
May 20, 2008: [Benson test.]: Lopez confirms in telephone conversation that Benson had informed Lopez about existence of SART video. (Conversation denied by Lopez.)
June 5, 2008: Lopez sends e-mail to Benson, indicating that Lopez was the person who first discovered that Ritter had videotaped the SART exam and had ...