(Super. Ct. No. CRF-08-825)
The opinion of the court was delivered by: Butz , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CRF-08-825)
(Super. Ct. No. CRF-08-825)
(Super. Ct. No. CRF-08-825)
A teenage girl, S.A., told a detective that she had been the victim of her employer's ongoing criminal sexual harassment. Her attorney, defendant and petitioner Jesse Isaias Santana (hereafter defendant Santana), then negotiated an agreement with the employer's attorney, defendant and petitioner David William Vasquez (hereafter defendant Vasquez). The agreement recited that "[i]n consideration of" S.A.'s receipt of $100,000, she would settle any civil claims she had against the employer and would "request that criminal charges not be filed . . . , and w[ould] exercise any privilege she may have pursuant to law not to testify in any proceedings . . . ." Even though the parties never consummated this agreement, the legal fallout from this paragraph has generated volumes.
A grand jury indicted the two attorneys for conspiring to obstruct justice (Pen. Code, § 182, subd. (a)(5)),*fn1 two different species of bribery,*fn2 and both simple witness dissuasion (§ 136.1, subd. (b)(2)) and dissuasion for financial gain (§ 136.1, subd. (c)(4)). The defendant attorneys moved to set aside the five-count indictment. The trial court granted defendants' motions as to the two bribery counts (and as to the count charging defendant Santana with witness dissuasion for financial gain) and denied them as to the remainder.
The defendant attorneys filed petitions for writ of prohibition directing the trial court to grant the balance of their motions to set aside. (Case Nos. C066008 [Santana] & C066009 [Vasquez].) We granted the motion of the People to consolidate the matters for purposes of briefing, argument, and decision. We also issued orders to show cause and a stay of the proceedings in the trial court.
The People filed a notice of appeal from the trial court's order to the extent that it granted defendants' motions to set aside the indictment. (Case No. C066219 [the People's appeal].) They also sought a writ of mandate on "the exact same issues on the exact same set of facts" directing the same relief. (Case No. C066447 [the People's writ].) After granting a stay and issuing an order to show cause in connection with the writ, on our own motion we first consolidated these two cases for purposes of argument and decision only, then consolidated them with the other two pending cases as well.*fn3
The record in defendant Santana's petition incorporates all the pertinent exhibits to defendant Vasquez's petition, except for the transcripts of the two hearings on the motions to set aside the indictment. The exhibits in support of the People's opposition to the petitions do not appear to contain any additional pertinent material, nor does the record in the People's appeal or the exhibits to the People's petition.
As to defendant Santana, we shall grant his petition for a writ directing the trial court to set aside the indictment in its entirety because an otherwise disqualified judge did not have jurisdiction to convene the grand jury that indicted him. This moots our consideration of his substantive challenges to the indictment.
As to defendant Vasquez, we do not agree that the grand jury indicted him for conspiracy to obstruct justice or witness dissuasion on less than probable cause as a result of erroneous expert testimony and incomplete instructions. We shall therefore deny his petition.
We shall affirm the People's appeal on a different basis than that specified in the trial court's ruling, on which we solicited supplemental briefing from the affected parties. Determining that their appeal at this point is an adequate remedy, we shall deny the People's petition for a writ of mandate. (8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 59, p. 937.)
FACTUAL AND PROCEDURAL BACKGROUND
A. Judge Scrogin and the Grand Jury
In response to defendant Santana's motion in May 2009 to disqualify her for cause in a criminal matter, Judge Julia L. Scrogin filed points and authorities and a verified answer. Defendant Santana attached the disqualification motion and Judge Scrogin's response as an exhibit to his motion to dismiss the indictment in order to develop the facts regarding the impaneling of the criminal grand jury that indicted the defendant attorneys. We draw the following facts from this source.
Judge Scrogin's Recusals (June-November 2008)
Judge Scrogin had been the prosecutor in a "high-profile murder case" in which defendant Santana had been successful in obtaining an acquittal in 2004 after two retrials. Judge Scrogin denied having any lingering animosity toward him as a result, and before May 2009 Santana had not sought to disqualify her in a few "minor misdemeanor matters" over which she had presided.
Starting in June 2008, for a "brief period" Judge Scrogin chose to recuse herself from hearing cases in which defendant Santana was of counsel "to avoid the appearance of impropriety."*fn4 She was aware from word of mouth and a May 2008 newspaper article that a visiting judge had issued warrants to search the offices of the defendant attorneys. In June 2008, she read another article containing assertions from defense counsel that the criminal investigation of defendant Santana, for his involvement in the negotiation of the settlement agreement at issue in this case, was intended to "'scuttle'" his application for an appointment to a vacancy on the Sutter County Superior Court in order that a prosecutor could obtain it. Judge Scrogin had written a letter in support of a rival candidate, and did not support defendant Santana's appointment.
The Governor made the appointment to the Sutter County court in January 2009. At that point, Judge Scrogin deemed the grounds warranting recusal for an appearance of impropriety to have ceased.
Impaneling the Grand Jury (September 2008)
In 2008, Judge Scrogin was assigned the duty of supervising the grand jury. In this role, she presided over the impanelment of a special criminal grand jury on September 16, 2008.
In this capacity, she conducted voir dire of the potential grand jurors to determine if they were qualified to sit on the grand jury, and solicited basic biographical information from prospective jurors in the course of determining whether they could be fair and impartial. In the process, she excused several potential jurors for cause, one of whom had surmised the subjects of the grand jury and had personal knowledge. After filing a copy of the charge with the clerk, Judge Scrogin left the courtroom, and the grand jury began its proceedings.
B. Griesa Grand Jury Proceedings (September & October 2008)
The circumstances of the alleged criminal offenses against S.A., which she described in testimony before the grand jury that indicted her employer (Joseph Griesa), are generally irrelevant to the derivative proceedings against the defendant attorneys. We thus give only a limited summary of them. However, because the grand jury was instructed that it could consider testimony from the Griesa proceedings in connection with the later proceedings against the defendant attorneys, we include testimony (primarily of S.A. and her sister) that relates to the manner in which the settlement agreement came into being.*fn5
S.A. was born in July 1990. Having graduated early from high school, she was attending community college in 2006 and close to obtaining her associate's degree in bioscience with plans to transfer to the University of California, Davis to eventually become a medical examiner.
Griesa had been her older brother's probation officer years earlier, and had become a family friend. He left the probation department to run a Marysville towing company, where S.A.'s older sister had worked as a dispatcher for a couple of ...