People v. Uribe
| Decision Date | 25 January 2012 |
| Docket Number | No. H035320.,H035320. |
| Citation | 199 Cal.App.4th 836,132 Cal.Rptr.3d 102,11 Cal. Daily Op. Serv. 12516,2011 Daily Journal D.A.R. 14853 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Augustin Santillah URIBE, Defendant and Respondent. |
OPINION TEXT STARTS HERE
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant AttorneyGeneral, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General, Attorneys for Plaintiff and Appellant.
David D. Martin, Law Offices of David D. Martin, Alameda, under appointment by the Court of Appeal for Defendant and Respondent.
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 (2008) 162 Cal.App.4th 1457, 76 Cal.Rptr.3d 829 [nonpub. opn.] ( Uribe ).) 1 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, 83 S.Ct. 1194, 10 L.Ed.2d 215) 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 nonstatutory 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 judicialsystem. It is undoubtedly an act that is “outrageous” in a general, nonconstitutional 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),2 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.3
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. 4
There was a significant amount of medical testimony at the trial. (See Uribe, supra, 162 Cal.App.4th at 1464–1469, 76 Cal.Rptr.3d 829 [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.
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, 83 S.Ct. 1194.
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 ( Uribe, supra, 162 Cal.App.4th at p. 1481, 76 Cal.Rptr.3d 829.) 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, 76 Cal.Rptr.3d 829), the Brady violation compelled reversal of the judgment. ( Ibid.)
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...
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