APPEAL from a judgment of the Superior Court of Kern County No. TF006398A H. A. Staley, Judge.[*]
[Copyrighted Material Omitted]
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant Efrain Velasco-Palacios was charged with lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)). Prior to trial, the lower court found the prosecution inserted a false confession into a transcript of defendant’s police interrogation and granted defendant’s motion to dismiss on the basis of outrageous government misconduct.
On appeal, the People assert the trial court erred by dismissing the case against defendant, as defendant was not prejudiced by the prosecutor’s misconduct. We find defendant’s constitutional right to counsel was prejudiced by the prosecutor’s misconduct and affirm the lower court’s order of dismissal.
FACTS AND PROCEDURAL HISTORY
On July 9, 2013, defendant was charged with five counts of lewd and lascivious conduct with a child after the daughter of defendant’s girlfriend reported several instances of molestation. Deputy public defender Ernest Hinman was assigned to defendant’s case. During pretrial settlement talks, Hinman was informed by the prosecuting attorney, Robert Murray, that the People would be willing to accept a settlement offer for a prison term of eight years. Defendant was unwilling to make such an offer, but Hinman continued to attempt to persuade defendant to make a counteroffer and informed Murray that he believed the case would settle.
While Hinman was making these efforts, Murray told Hinman he was considering dismissing the charges against defendant and refiling the charges to allege penetrative acts, which carried a possible life sentence. Murray also informed Hinman that, if the charges were refiled, Murray would be unlikely to accept any plea offers from defendant. After reviewing the evidence, however, Murray was unable to find any evidence of penetration. On October 21, 2013, Murray concluded he could not find evidence to support the greater charges. That same day, Murray provided Hinman with an English language translation of defendant’s police interrogation, which had been conducted in Spanish. The translation, however, contained two additional lines, added and fabricated by Murray, which read as follows:
“[Detective]: You’re so guilty you child molester.
“[Defendant]: I know. I’m just glad she’s not pregnant like her mother.”
Upon receiving the transcript, Hinman informed defendant it included an admission of penetration that could be used to file more serious charges against defendant. Defendant denied making the incriminating statements, and Hinman continued to advise him to make an offer to settle the case.
In the days following his conversation with defendant, Hinman sought to uncover why the incriminating lines were not present in the translation that had been prepared by his office. According to Hinman, the audio recording of the interrogation he received ended abruptly, and he was concerned the People’s transcript had been prepared from a different, longer audio recording. Hinman was also concerned about raising the issue with Murray directly, as he did not wish to alert Murray to any incriminating statements Murray might have missed. On October 28, 2013, seven days after Murray provided the falsified transcript, the parties were in court for what was scheduled to be the first day of defendant’s trial. Despite this appearance, Murray did not reveal the fabrication to Hinman. The trial was subsequently delayed until November 4, 2013.
On October 30, 2013, nine days after receiving the falsified transcript, Hinman e mailed Murray to request “the exact CD reviewed by [the People’s] transcriber/interpreter, ” but Murray did not respond to Hinman’s request. Later that day, Hinman spoke to Murray in person about the e mail, and Murray admitted to falsifying the transcript.
On November 15, 2013, Hinman filed a motion to dismiss, alleging outrageous and prejudicial prosecutorial misconduct by Murray. The People filed a response to defendant’s motion and asserted the lines were added “in jest, ” and defendant had not been prejudiced by the fabrication. The response also contained an affidavit from Murray stating Hinman had admitted to him defendant did not have a viable defense. Following the People’s response, the Kern County Public Defender’s Office removed Hinman from the case, citing the appearance of impropriety created by Murray’s allegation that Hinman stated defendant did not have a ...