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Gressett dismissal order

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					             IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                   IN AND FOR THE COUNTY OF CONTRA COSTA



THE PEOPLE OF THE STATE OF CALIFORNIA,                  5-091070-3




                                          Plaintiff,    DECISION ON
                                                        MOTION TO
                                                        DISMISS INDICTMENT
                                                        PURSUANT TO PENAL CODE
                                                        § 995 & NON-STATUTORY
                                                        MOTION TO DISMISS
                                                        INDICTMENT



vs.

MICHAEL GRESSETT,
                              Defendant.
______________________________________________________________/

I.    Background

      The court takes judicial notice of the underlying court file in this case.

       On October 19, 2009 a thirteen count indictment was returned charging
defendant with four counts of sodomy by use of force in violation of Penal Code
§ 286(c)(2); four counts of forcible sexual penetration in violation of Penal Code
§ 289(a)(1); two counts of forcible rape in violation of Penal Code § 261(a)(2);
one count of oral copulation by force in violation of Penal Code § 288a(c)(2); one
count of false imprisonment in violation of Penal Code § 236; and one count of
criminal threats in violation of Penal Code § 422. Multiple enhancements for
using a deadly weapon (Penal Code § 12002.3(a)) and personally using a
firearm (Penal Code § 12022.53(b)) were added on counts 2 to 11. An
enhancement for using a deadly weapon (Penal Code § 12022.5(a)) and Penal
Code § 12022(b)(1) was added to count 12.
       The defendant moves to dismiss the indictment under Penal Code § 995
on the grounds the prosecution introduced inadmissible evidence in violation of
Penal Code § 939.6 and violated his right to due process under both Federal and
State Constitutions. The defendant has also filed a non-statutory motion to
dismiss the indictment on grounds the prosecution failed to inform the grand jury
of exculpatory evidence in violation of Penal Code § 939.71 and the Federal and
State Constitutional right to due process.

       The court has reviewed the roughly 1000 page transcript of the grand jury
proceedings [hereafter referred to as “GT”] and the thirty-five grand jury exhibits
[hereafter referred to as “GT Exh.”].1 The court has also reviewed defendant‟s
lengthy briefing on the motion along with the twenty-eight exhibits he filed
under seal [hereafter referred to as “Def. Mt. Exh. A-Z; AA-CC2] and testimony
from six witnesses3 who testified at an evidentiary hearing in support of
defendant‟s non-statutory motion to dismiss. The record of that evidentiary
hearing [hereafter referred to as “EH”] comprised roughly 400 pages of
transcript and eight exhibits [hereafter referred to as “EH Exh.”].4 Subsequent to

     1
       Grand Jury Exhibits – Exhibit 1: defendant‟s driver‟s license; Exhibit 2: photo of defendant‟s condo; Exhibit 3:
photo defendant‟s nightstand; Exhibit 4: photo of defendant‟s dresser/bed; Exhibit 5 photo doorway of defendant‟s
room; Exhibit 6: photo knife set seized from defendant‟s kitchen; Exhibit 7 photo freezer in defendant‟s kitchen;
Exhibit 8: photo handcuffs seized from defendant‟s nightstand; Exhibit 9: photo ice pick handcuffs seized from
defendant‟s nightstand; Exhibit 10: photo KY gel; Exhibit 11: photo handgun handcuffs seized from defendant‟s
nightstand; Exhibit 12: text messages; Exhibit 13: photo passport/Viagra seized from defendant‟s safe; Exhibit 14:
photo Viagra; Exhibit 15: photo defendant‟s safe; Exhibit 16: photo handcuff key; Exhibit 17: defendant‟s photo closet;
Exhibit 18: photo; Exhibit 19: gun: Exhibit 20: handcuffs: Exhibit 21 icepick; Exhibit 22: three discs of interviews;
Exhibit 23: 9/26/08 transcript; Exhibit 24: CV Brian Harmon; Exhibit 25: DNA chart; Exhibit 26: DNA chart; Exhibit
27: police report from seized from defendant‟s drawer; Exhibit 28: Bob Hole‟s notes; Exhibit 29-1 to 4: audio disc;
Exhibit 30: redacted 95 pg. transcript: Exhibit 31: Kaiser Martinez records; Exhibit 32: Kaiser W.C records; Exhibit 33:
declaration: Exhibit 34: AT&T disc; Exhibit 25: Diana Weiss text messages.
     2
       Defense Motion Exhibits - Exhibit A: Complaint of Discrimination Under the Provisions of the California Fair
Employment and Housing Act (Apr. 12, 2009); Exhibit B: Release and Settlement Agreement; Exhibit C: Investigative
Reports of Arnold Lui; Exhibit D: Protocol for Law Enforcement Involved Fatal Incidents; Exhibit E: Letter regarding
Discovery; Exhibit F: Medical Records of Jane Doe from San Francisco Kaiser; Exhibit G:Transcript of Recorded
Statement of Debra Climer; Exhibit H:Transcript of Recorded Statement of Melissa Smith; Exhibit I:Transcript of
Recorded Statement of Courtenay Bravmann; Exhibit J: Transcript of Recorded Statement of Jill Henderson; Exhibit
K:Transcript of Recorded Statement of Theresa McLaughlin; Exhibit L: Unredacted Transcript of Recorded Statement
of Jane Doe given November 5, 2008; Exhibit M: Transcript of Recorded Statement of Andrea Tavanier given October
17, 2008; Exhibit N:Transcript of Recorded Statement of Tiffany Strauss Ryan; Exhibit O: Recorded Statement of Terri
Leoni; Exhibit P: Recorded Statement of Joanna Schonfeld; Exhibit Q: Transcript of Recorded Statement of Jon
McSweeney; Exhibit R: Recorded Statement of Patrick Graber; Exhibit S: Recorded statement of Carlos Vega; Exhibit
T: Report of Detective Sylvia; Exhibit U: Transcript of Recorded Statement of Holly Mantle-Stransky; Exhibit V: Text
Messages of Diana Weiss; Exhibit W: Transcript of Recorded Statement of David Brown; Exhibit X: Memorandum by
Paul Sequeira, June 17, 2008; Exhibit Y: Investigation Report by Paul Sequeira, dated October 9, 2008; Exhibit Z:
Notes of Cynthia Hall; Exhibit AA: Juror Questions; Exhibit BB: Report of Brian Harmon; Exhibit CC:Taped
Statement of Josephina Rodriguez.
     3
       Evidentiary Hearing Witnesses included Robert Kochly, former Contra Costa County District Attorney; Brian
Baker, former Chief Assistant District Attorney; Paul Sequeira, former senior Deputy District Attorney; Janet Holmes,
County Counsel, Contra Costa County; Ms. Doe, alleged victim; and Jill Henderson; Deputy District Attorney.
     4
       Evidentiary Hearing Exhibit A: Complaint of Discrimination Under the Provisions of the California Fair
Employment and Housing Act (Apr. 12, 2009); Exhibit B: Notice of Case Closure, April 22, 2009; Exhibit C: Closed
Session Order Board of Supervisors; Exhibit D: Letter from Ms. Doe‟s counsel to Office of County Counsel, April 8,
2009; Exhibit D1: Confidential memo from Paul Sequeira to Robert Kochly, June 17, 2008; Exhibit E: Release and
Settlement Agreement; Exhibit F: Supplemental Statement of Ms. Doe; Exhibit G: November, 2010 Arbitration
Hearing, testimony of Contra Costa County District Attorney Inspector Arnold Lui.


                                                                                                                      2
the evidentiary hearing, defendant filed a supplemental brief and included
additional exhibits. [EH Exh. H-J.]5

      The court has also reviewed the lengthy brief filed by the People in
opposition to defendant‟s motion to dismiss which included seven exhibits6
[hereafter referred to as “Peo. Opp. Exhibits] as well as the supplemental
opposition brief.

       The court finds in light of the multiplicity of issues raised by the defense,
the considerable volume of documentation in the record before the court, that in
order the reach the merits of those issues it was necessary to set forth a
detailed, and as a consequence, lengthy opinion. The court having carefully
reviewed the record and considered the arguments of counsel, finds that the
motion to dismiss the indictment should be granted.

        The court finds even though there was sufficient probable cause to indict
the defendant, because of the extent and nature of inadmissible evidence
introduced to the grand jury, coupled with the prosecutor's failure to advise of its
limited admissibility, when combined with the prosecutor‟s failure to disclose to
the grand jury Ms. Doe‟s claim and settlement along with her alleged statement
that she was raped by strangers was such that these cumulative errors violated
defendant‟s right to due process under the State Constitution to not be indicted
in the absence of a determination of probable cause by a grand jury acting
independently and impartially. The court however has not found any statutory
violation under Penal Code § 939.71.

II.       Discussion:

          A. Incompetent Evidence Was Admitted at The Grand Jury
             Proceedings

      Under Penal Code § 995, an indictment must be set aside, upon the
defendant's motion, when the indictment is "without reasonable or probable
cause." (§ 995(a); Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026-
1027 (Cummiskey).) "Probable cause is shown if a man of ordinary caution or
prudence could entertain a strong suspicion of guilt of the accused….” (People v.
Backus (1979) 23 Cal. 3d 360, 387 (Backus); Garcia v. Superior Court (2009) 177
Cal.App.4th 803, 818; Berardi v. Superior Court (2007) 149 Cal. App. 4th 476,

      5
       Evidentiary Exhibit H: Public Records Act Demand; Exhibit I: Memo from Joyce Blair to Robert Kochly;
Exhibit J: Juror Questions.
     6
       People‟s Exhibit A: Letter from Deputy Attorney General Peter Flores, Jr. to defense counsel, September 1,
2009; Exhibit B: Defense Request for Exculpatory Evidence For Grand Jury, October 1, 2009; Exhibit C: Letter from
defense counsel to Deputy Attorney General dated October 6, 2009; Exhibit D [Declaration of Peter Flores]; Exhibit E
[Declaration of Paul Sequeira]; Exhibit F [pp. 43-44, Statement of Jane Doe 11-05-08]; Exhibit G [Statement of Patrick
Llamas, 10-7-08.]


                                                                                                                    3
490 (Berardi).) Probable cause may exist although there may be some room for
doubt, and the evidence required in order to find probable cause need not be
sufficient to support a conviction. (People v. Mower (2002) 28 Cal. 4th 457, 473;
D'Amato v. Superior Court (2008) 167 Cal.App.4th 861, 880; Williams v. Superior
Court (1969) 71 Cal.2d 1144, 1147.)

        The court does not substitute its judgment as to the weight of the
evidence for that of the grand jury, and draws in favor of the indictment every
legitimate inference that may be drawn from the evidence. (Williams v. Superior
Court, 71 Cal.2d at p. 1148.) If there is some rational ground for assuming the
possibility that an offense has been committed and that the accused is guilty of
it, the indictment will not be set aside. (Jackson v. Superior Court (1965) 62
Cal.2d 521, 525.) Finally, the evidence received by the grand jury must "be
admissible over objection at the trial of a criminal action, but the fact that
evidence that would have been excluded at trial was received by the grand jury
does not render the indictment void where sufficient competent evidence to
support the indictment was received by the grand jury." (Penal Code § 939.6(b).)

        A defendant bringing a Penal Code § 995 motion to dismiss an indictment
may assert a lack of "reasonable or probable cause" under that statute on the
basis that the extent and nature of inadmissible evidence, or the prosecutor's
failure to advise of limited admissibility, or both, was such that it compromised
the grand jury's ability to act independently and impartially in reaching its
determination. If the record of the proceedings shows that it is unreasonable to
expect that the grand jury could have limited its consideration to the admissible
and relevant evidence, defendant has been denied due process. (People v.
Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 424, 435, relying on
Cummiskey v. Superior Court (1992) 3 Cal.4th 1018 [improper instructions given
to grand jury]; People v. Backus (1979) 23 Cal.3d 360, 393 [presentation of
irrelevant and incompetent evidence might violate due process, but was found
harmless in that case].)

      The following analysis addresses the individual claims raised by the
defendant.




                                                                                    4
       1.     Evidence of Ms. Doe’s Character for Truthfulness

       Defendant claims in his motion to dismiss that the People submitted
improper positive character evidence of Ms. Doe. While there was some evidence
regarding Ms. Doe‟s character for truthfulness, there was also an abundance of
statements by Ms. Doe to a variety of witnesses which contained some
inconsistencies.

       There is no merit to defendant‟s claim that the prosecutor was improperly
vouching for Ms. Doe‟s credibility by merely asking her what her profession was;
namely that of a prosecutor [GT18], or testimony that she usually presents cases
to the grand jury; or her mentioning positive feedback she received from a juror
on a case [GT128.] (People v. Sully (1991) 53 Cal. 3d 1195, 1235; People v.
Anderson (1990) 52 Cal. 3d 453.) There is nothing to support the claim that
such evidence could have improperly impacted on the grand jury‟s assessment of
Ms. Doe‟s character given that the grand jury was already aware that Ms. Doe
was a deputy district attorney; that she was not highly ranked in her class and
was not likely to be hired. [GT723-725.]

        The People concede that some testimony regarding Ms. Doe‟s character
for truthfulness was admitted. Theresa McLaughlin testified that she was
“familiar with Jane Doe‟s reputation for truth”; that Ms. Doe “was always truthful
in every dealing that I had with her”; and she hadn‟t heard “anything negative
about her or that she was untruthful – [n]o one ever said that she thought she
was untruthful at the office.” [GT405.] Similarly, Ms. Doe‟s former boyfriend, Jon
McSweeney, testified that during his relationship with Ms. Doe, he had not
known her “to fabricate or exaggerate stories.” [GT591-592.]

       The court finds nothing improper in such evidence. Evidence Code § 780
provides that a witness‟s character traits regarding truthfulness are admissible
with or without a prior attack on the witness‟s credibility. There is no limitation
in the Evidence Code on the use of evidence to prove the character of a witness
for honesty and veracity. Hence, under Evidence Code § 780 such evidence is
admissible. In any event, the issue of Ms. Doe‟s truthfulness was before the jury
as there was a significant amount of evidence impeaching her credibility based
on her prior inconsistent statements regarding the details of the alleged assault.
Therefore, evidence of her character for truthfulness was relevant.

       The court does not find that defendant‟s claim that the testimony of Ms.
Doe‟s father engendered sympathy for the victim and makes the evidence
inadmissible. Ms. Doe‟s father testified to the effect that he was proud of his
daughter for becoming an attorney and that they had bonded over being
attorneys in the field of criminal law. [GT596-597.] The court finds that Ms. Doe‟s


                                                                                      5
father‟s sentiments toward his daughter were relevant to the grand jury‟s
assessment of his credibility to the extent that such sentiments revealed his
potential testimonial bias towards his own child.

       2. Evidence of Defendant’s Bad Character

       Defendant asserts that the record in the instant case was replete with
inadmissible evidence of Mr. Gressett‟s asserted bad character introduced to
show that he acted in conformity with that character in committing the alleged
acts. Such statements related to sexually explicit content and scenarios described
by the defendant as well as a barrage of evidence showing defendant made a
variety of inappropriate remarks about women.

              a.     Personal-Admission Exception Applies, Ev. Code §
                     1220

       The prosecution argues that defendant‟s statements would be admissible
as admissions of a party opponent under Evidence Code § 1220. "The hearsay
rule does not compel exclusion of any statement offered against a party
declarant, whether or not it can be described as an admission." (People v.
Carpenter (1999) 21 Cal.4th 1016, 1049.) Hearsay, however, is not the issue
presented here. Therefore, while the court finds that a number of defendant‟s
statements were properly received in evidence under the personal admission
exception set forth under Evidence Code § 1220, this does not foreclose an
objection to such statements on the grounds that they constituted inadmissible
character evidence. (Penal Code § 939.6(b).)

              b.     Evidence of Sexual Scenarios Described by Defendant
                     Admissible to Prove Motive, Intent, Preparation

         Relevant character evidence is admissible except in those situations where
it is offered to prove conduct, or quality of conduct, on a specific occasion. (Evid.
Code, §§ 1100, 1101, 1104; People v. Millwee (1998) 18 Cal. 4th 96, 130-131.)
As an exception to this, evidence “that a person committed a crime, civil wrong,
or other act” may be admitted “when relevant to prove some fact…other than his
or her disposition to commit such an act,” including specifically “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in prosecution for an unlawful sexual act or
attempted unlawful sexual act did not reasonably and in good faith believe that
the victim consented.” (Evid. Code, § 1101(b); People v. Davis (1995) 10 Cal. 4th
463, 501; People v. Farmer (1989) 47 Cal.3d 888, 921; Old Chief v. United States
(1997) 519 U.S. 172, 180-181 [117 S.Ct. 644, 136 L.Ed.2d 574], quoting
Michelson v. United States (1948) 335 U.S. 469, 475-476 [69 S.Ct. 213, 93 L.Ed.
168].) Of course, even when evidence of prior bad acts may be relevant to


                                                                                   6
prove one of the specified facts, such as motive, and intent, it should
nonetheless be excluded when its probative value is substantially outweighed by
its prejudicial effect. (Evid. Code § 352.)

       Motive and Intent – In the present case, the court finds that the
evidence in which defendant described sexually explicit matters and scenarios
including forcible sexual activity involving the use of handcuffs, guns, ice cubes,
and ice picks was admissible to support the inference that defendant had the
motive and intent to sexually assault Ms. Doe as well as to show that he had
prepared for the sexual assault.

       Defendant contends that the prosecution did not assert a theory of motive
or intent. The question of whether evidence was erroneously admitted does not
depend on counsel's argument to the grand jury. (People v. Harrison (2005) 35
Cal.4th 208, 230, fn. omitted; People v. Brown (1994) 8 Cal.4th 746, 748.) In
any event such a claim is not supported by the record.

       The prosecution repeatedly instructed the grand jury that statements
made by defendant regarding sex could be used by the jury to prove some fact,
such as motive, intent, preparation, plan, knowledge, absence of mistake of the
fact and that the defendant did not reasonably and in good faith believe that
Jane Doe consented to the alleged crimes. [GT220, 822, 950.] The grand jury
was expressly instructed that the statements could not be used to prove
defendant‟s disposition to commit the crimes. [GT220, 822, 950.] There was
nothing in the record to support defendant‟s assumption that the above noted
evidence created any risk of confusion of the issues before the grand jury.
(People v. Lewis (2001) 25 Cal.4th 610, 637, quoting People v. Ewoldt, 7 Cal.4th
at p. 404.) "The presumption is that limiting instructions are followed by the
jury…That presumption is not rebutted here." (People v. Waidla (2000) 22
Cal.4th 690, 725; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The
prosecution‟s limiting instruction clearly prohibited impermissible use of character
evidence.

       The court further finds that although motive is not an element of any of
defendant's crimes, “the absence of apparent motive may make proof of the
essential elements less persuasive….” (GT902; People v. Phillips (1981) 122
Cal.App.3d 69, 84; People v. Beagle (1972) 6 Cal.3d 441, 450.) Many acts that
appear "senseless" when the motivations of the actor are unknown, become
quite logical and consistent when such considerations are discovered.
Defendant‟s alleged sexual assault of Ms. Doe during the lunch hour when
combined with his use of handcuffs, a gun, ice cubes, and an ice pick raised but
did not fully answer questions about his motive. In the absence of a motivational
hypothesis, and in the light of other information which the grand jury had
concerning the defendant‟s and Ms. Doe‟s relationship, the conduct ascribed to


                                                                                      7
the defendant was incongruous and apparently inexplicable. Accordingly,
evidence of a defendant‟s apparent motive made proof of the essential elements
of the crimes more persuasive.

       The court finds that defendant‟s sexualized communications with his
coworkers concerning various sexual scenarios were relevant and admissible to
prove that defendant‟s motive and intent was to act out these scenarios in
sexually assaulting Ms. Doe. (People v. Davis (2009) 46 Cal. 4th 539, 561, 604,
605 [evidence of prior attempts to sexually assault other victims, and defendant
admitted sexual fantasies about assaulting and binding his prior female victims
was relevant to establishing defendant‟s motive to sexually assault the young
victim.]

        The grand jury could reasonably have inferred that the sexual scenarios
described by the defendant reflected his sexual fantasies. [GT254 (Ms. Smith);
GT443 (Ms. Tavenier); GT674 (Ms. McKosker).] The record supports this
inference. Ms. Smith [GT254] and Ms. Tavanier [GT443] testified that they could
not tell whether defendant was talking about things he wanted to do, as
fantasies or whether they were things he had actually done. The grand jury also
heard evidence from Mr. Eichman from which in could be inferred that the
defendant drew upon the sexual assault scenarios he was exposed to during the
course of his work as a prosecutor in the sexual assault unit to embellish his
repertoire of his own sexual fantasies.

        Mr. Eichman testified that defendant told him he was fine with being
transferred to the sexual assault unit because defendant said he was running out
of ideas in the bedroom. [GT683.] In fact, a police report [GT Exh. 27] was
found in defendant‟s residence involving a 2007 case of a 17 year old girl
abducted from her bedroom by a man who posed as a fireman. Her wrists were
bound, her eyes covered with duct tape, and she was raped three times and
sodomized once. [GT687.] She was forced to take a shower to wash herself off
afterwards. Defendant had been assigned the case, however the grand jury
heard evidence that the case had already proceeded to a preliminary hearing in
August 2007 and had been in a holding pattern from April 1, 2008 to July 28,
2008. There was evidence that it was a redacted copy of the report, making it
difficult to work from and there was no need for a deputy district attorney to
take such a report home. [GT694.] This provided further circumstantial evidence
to support an inference that the sexual scenarios described by the defendant
were connected to his own personal sexual fantasies.

       The grand jury also heard exculpatory evidence which countered the
inference that defendant had any improper motive toward Ms. Doe. Specifically
certain co-workers characterized defendant‟s sexualized conversation as being
part of his sense of humor – that he was merely joking. [GT303 (Ms. Weiss);


                                                                                   8
GT499, 509 (McMaster); GT553 (Ms. Leoni); GT550 (Karen Zelis).] When he
would talk, he was described as “entertaining,” “often times extreme,” and “sort
of perverted.” [GT552-553 (Ms. Zelis), Mr. McMaster [GT553] and Ms. Tavenier
[GT449] described defendant as a “shock jock.” It was in this context the
prosecutor observed that “[e]very joke has a kernel of truth” was made – a
comment the defendant contends was not proper. [GT902, 917.]

        Other witnesses indicated because of the extreme and outlandish nature
of defendant‟s stories that they could not discern whether the sexualized
scenarios were fact or whether he was just being a good storyteller. [GT250-252,
254 (Ms. Smith); GT302 (Ms. Weiss); GT443-444 (Ms. Tavenier). As time went
on, his coworkers who heard defendant‟s “stories”, found that they became
ridiculous. [GT253 (Ms. Smith).] Most believed that he did not mean the things
he was saying and that he was not engaging in forcible non-consensual sexual
acts. [GT254 (Ms. Smith); GT446 (Ms. Tavenier); Ms. Weiss [GT302-303]; Ms.
Zelis [GT553-554.] Ms. McKosker viewed defendant‟s sexualized scenarios as
something that would or could occur but that it would be a consensual situation.
[GT673.]

        The court finds that notwithstanding the exculpatory value of the
witnesses‟ description of defendant as just joking or that he was just a story
teller when he spoke of the graphic sexual matters, the grand jury could
reasonably have inferred that the storied nature of the sexual scenarios
described by defendant could also be construed as representing potential sexual
fantasies he wished to carryout. Furthermore, the grand jury could reasonably
have inferred that the comments were not made in jest based on the similarity
between the sexual scenarios defendant had described to his coworkers and the
manner in which he was alleged to have carried out the sexual assault against
Ms. Doe. Based on this the grand jury could have inferred that defendant‟s
motive and intent was to carry out such sexual scenarios with Ms. Doe against
her will.

       This conclusion is supported by the record which indicated that the sexual
scenarios defendant described to his coworkers included bondage with handcuffs
along with the use of ice cubes, and an ice pick during the course of forcible oral
and anal sex. The grand jury heard evidence from Ms. Smith [GT247] and Ms.
Tavenier [GT446] that defendant spoke of the use of handcuffs during sexual
encounters. There was evidence that defendant talked to Ms. Smith [GT255] and
Ms. Tavanier [GT444] about how he had tied a woman up before. Ms. Smith
[GT247] and Ms. Tavenier [GT445-446] along with Mr. Brown [665] testified
defendant had spoken of inserting ice cubes in the vagina and anus of women.
Ms.Tavenier [GT443] and Ms. McKosker [646] testified that defendant talked
about using an ice pick. Ms. Zelis testified that defendant would jokingly say
“bend the girl over and slap her on the ass and put an ice pick to her head.”


                                                                                   9
[GT551, 554.] There was evidence that defendant spoke of using guns during
sexual encounters as well. Ms. McKosker testified to a specific instance when
defendant had consensual sex with a coworker that involved the unspecified use
of guns. [GT647.] On another occasion defendant told Ms. Smith that while he
had sex with a woman she had taken apart a gun which “turned him on.”
[GT253-254.]

        There was evidence that defendant talked about forcible oral copulation.
Mr. Cabral described defendant talking about “forcing the [woman‟s] head down
to his cock.” [GT737.] Defendant said he liked taking a woman by the hair or
neck and shoving then down to his private area. Defendant would use the phrase
“painting her face” to describe how he like to ejaculate in the woman‟s face.
[GT737, 739.] Ms. Tavenier testified about Mr. Gressett saying he would tie a
woman‟s hands behind her back, then he would “shove his dick” in the woman‟s
mouth. [GT444.] Ms. Zelis testified that defendant talked about forcing a
woman‟s head down and forcing her to orally copulate him. [GT550, 552.] Ms.
Smith testified that defendant had described how you grab a woman‟s head and
say “take it bitch” referring to how to get a woman to forcibly orally copulate a
man. [GT250.]

        The grand jury heard evidence that defendant described scenarios
involving forcible sex. Defendant spoke to a coworker, Mr. Cabral, about how he
had “rough sex” with a female companion and that defendant would often talk
about forcible sex. [GT737.] Ms. Tavenier testified that defendant was into
“rough sex”. [GT445.] Ms. Zelis testified that Mr. Gressett would tell jokes about
forcible sex. [GT499.] Mr. MacMaster testified that Mr. Gressett would
sometimes make statements that involved violence against women during sexual
relations. [GT500.] Defendant described to Ms. Smith how in the middle of the
act of sex the person would beat the person turning their face red, which he
called a strawberry. [GT246.] Defendant even had told Ms. Doe that he had had
sex with a girl who had wanted it rough but afterwards she had cried and he was
complaining that “heh, she asked for it that way.” [GT102.]

       The grand jury also heard evidence that defendant described scenarios
involving forcible anal sex. Ms. Zelis testified that defendant “joked” about anal
sex, and oral sex and putting an ice pick to a woman‟s head while “fucking her in
the ass.” [GT GT550, 552.] Mr. Brown described how defendant would refer to
women in terms of wanting to “grab her and fuck her in the ass.” [668.] Mr.
Eichman testified to the same thing. [GT678.] Ms. McKosker testified that with
respect to himself, Mr. Gressett had talked about anal sex, bondage, and role
playing. [GT648.]




                                                                                10
       Here there was a logical or causal connection with the crimes for the
defendant was indicted on and the sexual scenarios he repeatedly referenced.
These had a bearing upon the question of motive and intent. (People v. Hall
(1938) 27 Cal. App. 2d 440, 446; People v. Jones, 225 Cal. App. 2d 598; People
v. Le Doux, 155 Cal. 535, 552.) To be admissible to show intent, the prior
conduct and the charged offense need only be sufficiently similar to support the
inference that defendant probably harbored the same intent in each instance.
(People v. Cole (2004) 33 Cal.4th 1158, 1194, quoting People v. Yeoman (2003)
31 Cal.4th 93, 121; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The
sexually explicit scenarios the defendant had spoken of with coworkers
concerned forcible sex, anal sex and oral sex. His statements included
discussions on the use of handcuffs, guns, ice cubes, and ice picks during the
course of sex. The evidence before the grand jury also indicated that defendant
was alleged to have used an ice pick to forcibly shove ice cubes into Ms. Doe‟s
vagina and anus while she was handcuffed. Using these tools he allegedly
engaged in forcible oral, vaginal and anal sex with Ms. Doe. [GT30, 103-106,
185, 280, 643, 655.]

       Accordingly, the grand jury could have inferred that the sexual scenarios
described by the defendant reflected his sexual fantasies and from which the
grand jury could further have inferred that his motive and intent was to carry out
these sexual scenarios with Ms. Doe by forcibly raping and sodomizing her
against her will with the use of handcuffs, a gun, ice cubs and an ice pick.

       Preparation -The court finds that evidence of defendant‟s statements
concerning the use of guns, handcuffs and an ice pick during sex when coupled
with the fact that a gun, ice pick and handcuffs were readily accessible during
the sexual assault in the night stand next to the bed [GT201-202], and then
found in that location by law enforcement during a search of defendant‟s home,
could reasonably have supported an inference that defendant has prepared to
carryout his sexual fantasies upon Ms. Doe against her will. Therefore, the sexual
scenarios referenced by the defendant were also relevant to prove he had
prepared for the sexual assault upon Ms. Doe.

       Reasonable Good Faith Belief Victim Consented – The court finds
that the same evidence that supports an inference of defendant‟s motive, intent
and preparation was also relevant to negate any inference that his alleged belief
Ms. Doe was consenting was reasonable and genuine. Defendant‟s prior
statements indicating his interest in committing forcible sex acts were relevant to
determining the validity of defendant‟s belief in consent. Accordingly, in light of
the evidence of defendant‟s motive, intent and preparation, the court finds that
evidence of defendant‟s sexualized communications noted above were admissible
pursuant to Evidence Code § 1101(b).


                                                                                11
        The court finds, however, that there was some character evidence
improperly admitted before the grand jury that was not relevant to motive,
intent, preparation or reasonable belief in consent. That evidence included that
defendant spoke disrespectfully of one his former girlfriends7 [GT103]; that he
referred to women using derogatory terms8 [GT103, 249; 442, 500]; that
conversations with defendant invariably turned to discussing sex [GT244, 255-
256; 434, 444; 552-553; 664, 665, 678; 736-737]; that he had a reputation as
someone with a large sexual appetite, who had had many sexual partners, and
who “wasn‟t into the meaningful relationship” [GT303]; that he made
unprofessional comments in front of and towards a sexual assault victim [GT430-
431]; that defendant had on a number of occasions been counseled by
coworkers against such sexual comments, telling him, “You‟re a walking sexual
harassment suit” [GT508]; and that defendant was “not necessarily well liked
throughout the office with everyone.” [GT529.] Andrea Tavenier testified to an
unflattering specific incident where Mr. Gressett said the flowers he was getting
were for the first woman who gives him a “blow job.” (GT442.)

         3. Photos of Viagra

       Defendant contends that the prosecution introduced inadmissible evidence
when it elicited testimony from Detective Mike Estanol about the contents of
photographs that depicted items seized during the search of the defendant‟s
residence. [GT Exh. 13 and 14.] When shown the exhibits Detective Estanol
claimed they depicted “what appeared to be Viagra.” [GT208-209.] Defendant
claims there was no foundation for Detective Estanol‟s opinion about what was
depicted in Exhibits 13 and 14.

       Detective Estanol testified that on October 2, 2008 he participated in the
execution of a search warrant at the defendant‟s residence [GT197.] He was “the
main person for the search warrant...[and was deemed] as finding of all the
evidence at the search warrant.” [GT197.] He was actually involved in the search
of the master bedroom. [GT201.] During that search he seized from inside a
locked safe in the master bedroom‟s closet the defendant's passport along with
what appeared to him to be two open packs of Viagra containing 184 pills.
[GT208, 209, 217.] He testified that the photos in Exhibit 13 and 14 were
accurate representations of what the items as he had seen them on the day he
found them. [GT210.] This satisfies the court that this is a sufficient foundation
for the admission of the photos.


      7
        There was also evidence that Ms. Doe heard defendant “make a lot of very derogatory comments about [the
Judge he had dated] about having had sex with her and cheating on her…how it had hurt her, and sort of laughing about
it.” [GT103.]
      8
        Ms. Doe testified defendant referred to woman as “Bitch. Cunt.” Nothing flattering.” (GT103.) Melissa Smith
testified defendant referred to women as “Pussy.” [GT249.]


                                                                                                                 12
      4. Jane Doe’s testimony – Leading Questions

        Defendant asserts that the prosecution was obligated to present the jury
with all of Ms. Doe‟s inconsistent statements but that Ms. Doe‟s statements to
law enforcement were not actually played until ten days after Ms. Doe had
testified. The court does not find anything improper in the prosecution‟s decision
to have waited until that time to play the recorded statements. The tapes were
played on consecutive days. (GT761-766, 782-783; 846-847.) There is nothing
to suggest the grand jury was unable to perform a meaningful comparison or
had any difficulty in recalling Ms. Doe‟s testimony at the time they heard the
inconsistent statements she made in her police statements. Once the
inconsistent and consistent portions of the interviews were considered, the
remainder of the tapes was relevant evidence to give context of any consistent
or inconsistent statements

       Defendant also asserts that the prosecutor conducted an examination of
Ms. Doe about the alleged assault that consisted principally of leading questions.
These included introducing Ms. Doe as a prosecutor [GT18, 27]; stating
defendant was also a prosecutor [GT19]; describing the hiring process [GT21];
describing Ms. Doe‟s lunch date with defendant in San Francisco [GT24];
describing that Ms. Doe and Mr. Gressett left for lunch some time after on May 8
[GT32]; identifying a photo of Mr. Gressett‟s residence [GT34]; describing Ms.
Doe‟s state of mind as being afraid [GT36, 60]; stating Ms. Doe‟s attitude
towards anal sex at the time of the incident [GT39]; describing the gun [GT43];
and stating that defendant put his penis in her mouth. [GT56.]

       The court does not find anything improper in the manner of questions
posed by the prosecution to Ms. Doe. The questions were either foundational,
and/or were merely following up from Ms. Doe‟s testimony seeking further
elaboration or clarification.

      5. Diana Weiss’ Testimony – Speculation of Defendant’s
         State of Mind

       Defendant asserts that Ms. Weiss was allowed to speculate about what
she believed Mr. Gressett‟s thought processes were during the time after the
alleged assault. Ms. Weiss described how Mr. Gressett had come into her office
while Ms. Doe was absent from the office, asking her how good of a friend she
was with Ms. Doe [GT829]. Based on this she was of the opinion, or of the
impression, that he was trying to smooth things over and was on damage
control. [GT829-830.] The court finds this evidence was inadmissible.




                                                                                13
      6. Daryl Jackson Testimony – Hearsay

       Investigator Jackson testified that Ms. Doe had told him the reason she
did not want to testify at the preliminary hearing was because she had watched
defendant‟s attorney on television state that it was going to be a “blood bath”.
[GT817-818.] Defendant argues that Mr. Jackson‟s testimony contained multiple-
level hearsay and it should not have been introduced to the grand jury.

       The court finds that the reason why Ms. Doe did not want to testify at a
preliminary hearing was hearsay evidence but that it would not have interfered
with the grand jury‟s ability to consider the other admissible evidence. This
conclusion is reinforced given the prosecutor followed up and asked Investigator
Jackson whether the “blood bath” comment, could also refer to exposing
problems in the D.A.‟s Office and not specifically about Jane Doe? Detective
Jackson replied, “I can say yes to that. It could….” [GT819.]

      7. Ms. Doe’s Prior Statements

        Defendant claims that the prosecutors asked every witness, who spoke to
Ms. Doe about the events of May 8, 2008, for a complete version of what Ms.
Doe had said about the alleged incident. Descriptions of the assault and Ms.
Doe‟s injuries as well as the admission of Ms. Doe‟s full police interviews were
provided for the grand jury. Defendant, however, has not alleged with sufficient
specificity the facts and law upon which relief can be granted. Claiming that
“some of [Ms. Doe‟s out of court] statements might have been admissible under
various hearsay exceptions” but that the “prosecution paid no heed to whether
or not a particular statement fell within an exception” and referencing Ms. Doe‟s
taped statements as containing “certain portions [that] may have been
admissible as prior inconsistent statements [while] other portions clearly were
not admissible” is so vague as to be meaningless.

       The court finds that defendant has made a conclusory assertion that the
hearsay rule was violated in the admission of statements from other witnesses –
but does not indicate which witnesses. He claims their descriptions of the assault
and her injuries were improper but does not identify which aspect of their
testimony was improper. Defendant has failed to identify what portions of the
record, more specifically which of Ms. Doe‟s out of court statements and to
whom violated the hearsay rule and which ones did not. There is no foundational
basis upon which the court can assess the merits of defendant‟s claims. It would
require pure speculation and guesswork on the part of the court to determine
which portions of the record the defendant objects to and on what grounds.
Such vague and conclusory allegations unsupported by factual or legal
references are insufficient to support the dismissal of the indictment.


                                                                                14
      8. Mr. McKenna’s September 26, 2008 Statements

       Defendant contends the prosecution introduced irrelevant evidence in the
form of Tom McKenna‟s statements to Ms. Doe on September 26, 2008, where
Mr. McKenna encourages her by stating “[y]ou‟re very credible and you know the
way you tell the story, it‟s beyond a reasonable doubt. Ok, he goes down.” (GT
Exh. 23, pp. 55-56.) Mr. McKenna‟s opinion as to whether or not Ms. Doe‟s
version of the evidence was credible beyond a reasonable doubt was not
relevant to the matter before the grand jury and was inadmissible.

      9. Prosecutorial Misconduct

             a. Comment on Sentencing

       Defendant contends that the prosecutor made improper statements to the
grand jury as to the sentencing option [GT879-880; 881-882; 887-888] which he
argues represents prosecutorial misconduct and a further denial of due process
in the manner in which the case was presented to the grand jury. The court does
not find that the comments here complained of had any tendency to induce the
grand jury to reach a verdict on ulterior considerations. Nor did they suggest to
the grand jurors that leniency might be extended to the defendant if he were
indicted. (People v. Smith (1929) 206 Cal. 235, 238-239.) The prosecutor‟s
remarks were for the purpose of explaining why there were multiple
enhancements charged and their relevance to the ultimate trier-of-fact whose
responsibility it would be to determine sentencing if there was a conviction.

             b. Interference With Duty to Investigate

                 i. Prosecutor’s Remarks

       Defendant contends that the prosecutor repeatedly took steps that had
the effect of ensuring that the grand jury could not fulfill its role as an
independent body. A grand jury has broad investigative powers to determine
whether a crime has been committed and who has committed it. [Pen. Code, §§
939.2; 939.7; Branzburg v. Hayes, (1972) 408 U.S. 665, 701; 92 S. Ct. 2646; 33
L. Ed. 2d 626; United States v. Dionisio (1973) 410 U.S. 1, 13, fn. 12, 93 S. Ct.
764; 35 L. Ed. 2d 6735 L.Ed.2d 67; M.B. v. Superior Court (2002) 103
Cal.App.4th 1384, 1394-1395; McGill v. Superior Court (2011) 195 Cal.App.4th
1454, 1504.)




                                                                               15
        Defendant contends that a series of remarks by the prosecutor had the
effect of discouraging the grand jury from asking of questions. [GT16 (scope of
jurors questions); GT154 (date grand jury proceedings were to be completed);
GT172 (scope of grand juror questions).) There is no merit to this. The grand
jurors were informed that they could ask questions and could ask to call any
witnesses to testify. [GT786-787; 849-850.] Here, the grand jury was properly
instructed of its powers at the outset, during its exchanges with the prosecutors,
and at the close of the hearing. [GT201; 870-871; 929.] The grand jury here
clearly knew of its ability to have other evidence brought before it, but exercised
its discretion and decided it was not likely to negate the charge.

                 ii. Grand Jurors Questions

        The court further does not find that the prosecution interfered with the
grand jurors‟ fact finding duties by not putting certain of the following questions
to the witnesses which the court finds were irrelevant: The grand jury had
already been informed that they could ask questions of the witnesses; whether
or not Ms. Doe had told anyone about the defendant‟s inability to perform on the
previous date; and; whether Ms. Doe had any relationships with others in the
office. [Def. Mt. Exh. AA; EH Exh. J.]

        Defendant also complains that the People did not ask the grand jurors
question as to whether the victim had ever engaged in anal sex or mentioned
being open to rough sex or whether she was open to it. Defendant asserts that
given Ms. Doe‟s depiction of herself as “disinclined” to engage in these behaviors
means that the question should have been asked. The record does not support
this characterization of Ms. Doe‟s testimony. She never testified that she was
“disinclined” to engage in anal sex or rough sex. Rather she specifically testified
that she did not consent to anal sex with the defendant. Therefore there was no
need to ask the question.

        The record supports this finding. She remembered looking behind towards
the defendant after she had been pushed onto the bed and laughingly saying
"no, no no no no no no no….Something like that." [GT39.] She thought he was
"just kind of trying to sort of back door it” but “you're just not allowed there was
kind of [her] attitude." [GT39.] She testified that her understanding was that
“we can have sex but you know I don't want it up the ass." [GT39.] They had
never spoken about it in advance nor had she ever given him any indication that
she wanted anal sex. [GT44.] Nor had they ever spoken about anal sex prior to
the incident either in text messages or during verbal conversations. [GT125.]




                                                                                  16
       Accordingly, the court finds that questions posed by the grand jurors were
properly not submitted to the witness as they did not pertain to any sexual
conduct between the defendant and Ms. Doe. [Evidence Code § 1103(c)(3).] The
question sought inadmissible evidence of Ms. Doe‟s prior sexual conduct, other
than with the defendant, which was not admissible to prove consent or the lack
thereof. [Evidence Code § 1103(c)(1).] The grand jury had no other legally
admissible reason for hearing this evidence. In short the court finds the
questions were either irrelevant; had already been asked and answered; were
impermissible and/or the prosecution provided a legitimate explanation in
response to certain questions.

          8.        Nature and Extent of Inadmissible Evidence Resulted in a
                    Violation of Defendant’s Due Process Rights Under State
                    Constitution

       Ultimately, inadmissible evidence does not render the indictment void
where there is sufficient competent evidence to support the indictment. [Penal
Code § 939.6(b).] If the competent evidence would lead a man of ordinary
caution to conscientiously entertain a strong and rational suspicion of guilt, the
indictment will not be set aside. (Bompensiero v. Superior Court (1955) 44
Cal.2d 178.) The court finds there was sufficient probable cause to indict [Penal
Code § 939.8].) However, notwithstanding the language of Penal Code § 939.6,
a defendant‟s due process rights can be violated depending on the nature and
extent of the incompetent evidence. (People v. Backus (1979) 23 Cal.3d 360,
393.) The court herein finds a violation of those rights under the California State
Constitution.9

       In the present case, the court finds the prosecution introduced
inadmissible evidence to the grand jury in the form of Mr. McKenna‟s opinion
(Ms. Doe‟s version of the evidence was credible beyond a reasonable doubt); bad
character (defendant‟s disrespectful attitude towards women generally and
sexually, his preoccupation with sex as a topic of conversation and his
unprofessionalism); as well as Ms. Weiss‟s impression defendant showed



     9
        In Backus, p392 the court did not distinguish between the Federal and State Constitutional right to due process,
rather it appeared to address whether grand jury indictment procedures must comport with the demands of the due
process clauses of both the federal and state Constitutions. The case before this court requires such a distinction.
Defendant has sought dismissal on Federal and State Constitutional grounds. For the reasons detailed below under this
court‟s due process analysis on the prosecutor‟s duty to inform the grand jury of exculpatory evidence, the court limited
its conclusions to defendant‟s due process rights under the State Constitution, and therefore it will similarly restrict its
conclusions as to the deleterious impact of the inadmissible evidence on the grand jury‟s ability to act impartially and
independently as it pertains to any violation of the State Constitution. (People v. Superior Court (Mouchaourab) (2000)
78 Cal.App. 403, 424.) In light of the court‟s ultimate ruling it does not consider it necessary to separately address any
claim under the federal due process clause as to the effect the inadmissible evidence did or did not have on the grand
jury‟s decision to return an indictment.


                                                                                                                        17
consciousness of guilt (defendant was trying to smooth things over and was on
damage control when he came into her office.)

       The court finds that when considered on its own this inadmissible
evidence would not have been sufficient to have interfered with the jury‟s ability
to consider the competent evidence which was sufficient to indict. (Penal Code §
939.6(b).) However, when the court also takes into account the failure on the
prosecutors‟ part to inform the grand jury of Ms. Doe‟s complaint to Department
of Employment and Fair House and the monetary settlement against the County
of Contra Costa as well as her alleged statement that she had said she was
raped by strangers, the effect of the above noted inadmissible evidence is such
as to cast the record in such a light that the court concludes it is not reasonable
to expect that the grand jury could have limited its consideration to the
admissible evidence and therefore defendant has been denied due process.
(People v. Backus (1979) 23 Cal.3d 360, 393; People v. Superior Court
(Mouchaourab) (2000) 78 Cal.App. 403, 424.) Accordingly, while the motion to
dismiss pursuant to Penal Code § 995 is denied, the court shall take into
consideration for the purpose of the non-statutory motion to dismiss how the
inadmissible evidence contributed to violating the defendant‟s right to due
process at grand jury proceedings.

      B.     Failure to Inform Grand Jury of Exculpatory Evidence

      Dismissal of the indictment is sought on statutory grounds under Penal
Code § 939.71 as well as on the ground that his due process rights were violated
under the Federal and State Constitutions for failure on the part of the
prosecutor to inform the grand jury of exculpatory evidence. A non-statutory
motion to dismiss as filed here is the appropriate vehicle for redress of an error
not known or visible at the time of the proceedings. (People v. Stanton (1987)
193 Cal.App.3d 265, 269, 271; People v. Currie (1991) 230 Cal. App. 3d 83.)

        Specifically defendant contends that the prosecution failed to introduce
the following exculpatory evidence before the grand jury: (1) Ms. Rodriguez,
defendant‟s maid, was responsible for removing the sheets and did not see any
stains; (2) The results from Mr. Harmon, DNA analyst test on the stains on
defendant‟s mattress; (3) defendant‟s history with his ex-girlfriends; (4) Ms.
Doe‟s character for untrustworthiness; (5) Ms. Doe‟s statements as to what time
it was when she left the office; (6) Sheriff‟s report found in defendant‟s room
was used by him at a training seminar; (7) prosecution‟s noncompliance with the
Protocol For Law Enforcement Involved in Fatal Accidents; (8) Ms. Doe‟s pre-
existing medical condition; (9) Ms.Doe‟s medical problems incident to the
assault; (10) evidence on how Ms. Doe sent a pornographic photo to the
defendant; (11) Ms. Doe‟s use of strap-on device; (12) Ms. Doe‟s statement on
use of guns; (13) Ms. Doe‟s former boyfriend‟s use of ice; (14) prior-inconsistent


                                                                                 18
statements of Ms. Smith, Mr. McSweeney, Ms. Climer, Mr. Vega, Ms. Weiss, Ms.
McLaughlin, Mr. Brown as to Ms. Doe‟s demeanor; (15) inconsistency in Paul
Sequeira‟s memo and notes; (16) Ms. Mantel-Stranky‟s statement on the number
of times Ms. Doe previously had sex with defendant; (17) Ms. Doe‟s statement to
Ms. Smith that she was abducted and raped by strangers; and (18) Ms. Doe‟s
employment claim and monetary settlement.

      a. Statutory Duty to Inform Grand Jury of Exculpatory Evidence
         Pursuant to Penal Code § 939.71

       As a threshold matter, the court must determine what the prosecutor‟s
duty is under Penal Code § 939.71 to inform the grand jury of exculpatory
evidence when he or she is not actually aware of certain exculpatory evidence.
This becomes relevant in particular to ascertaining the impact if any from the
prosecution‟s failure to inform the grand jury of Ms. Doe‟s complaint with the
Department of Employment and Fair Housing and the monetary settlement as
well as Ms. Doe‟s statement that she had been abducted and raped by strangers.

        The court has concluded that the statute requires the individual
prosecutor to be actually aware of the exculpatory duty, where as under a due
process analysis (which is discussed under a separate heading below) knowledge
of exculpatory evidence that is possessed by members of the prosecution team
can be imputed to the prosecutor. Under the statute, the prosecution is obligated
to "inform the grand jury of [the] nature and existence" of exculpatory evidence
of which the “the prosecutor is aware.” (Penal Code § 939.71 (a) [codifying
holding of Johnson v. Superior Court (1975) 15 Cal. 3d 248, 254-255 (Johnson).)
Further to Johnson and Penal Code § 939.71 the prosecution has a duty to turn
over evidence to the grand jury that reasonably tends to negate guilt. (McGill v.
Superior Court (2011) 195 Cal. App. 4th 1454, 1517.]

      The court declines to interpret the statute in the manner proposed by the
defendant as requiring the court to impute knowledge to the prosecutor of
exculpatory evidence that is in the possession of members of the prosecution
team as defined in Kyles v. Whitley (1995) 514 U.S. 419, 437, 115 S.Ct. 1555,
131 L.Ed.2d 490 (“Kyles”) [defined prosecution tear as “others acting on the
government's behalf in the case including the police.] The court finds that Penal
Code § 939.71 only imposes a duty on the prosecutor to inform the grand jury of
exculpatory evidence for which he or she is actually aware.

       In 1998, the legislature codified Johnson - 23 years after the case was
decided –construed Penal Code § 939.71. [§ 939.71(a), (b).] Relying on the rules
of statutory interpretation, the court in Johnson construed Penal Code § 939.7 to
place an implied obligation on the prosecutor to disclose any known exculpatory
evidence to the grand jury. Under long-standing California statutory law, the


                                                                               19
grand jury does not have to hear exculpatory evidence, but if it has reason to
believe such evidence exists, may order the prosecutor to produce it. (Penal
Code § 939.7.)

        The facts in Johnson involved a prosecutor who was actually aware at the
time of the grand jury proceedings of defendant‟s testimony at the preliminary
hearing which led the magistrate to dismiss the first complaint. The district
attorney did not bring this to the attention of the grand jury and created a false
impression that the defendant would refuse to testify if called. (Johnson, 15 Cal.
3d at pp.250, 252.) Since Johnson, cases interpreting Penal Code § 939.71 have
centered on facts in which the prosecutor was actually aware at the time of the
grand jury proceedings that there existed exculpatory evidence but failed to
inform the grand jury as required. (McGill v. Superior Court (2011) 195 Cal. App.
4th 1454, 1463-1465 [the prosecutor was aware of an affidavit from an
investigator employed by the district attorney‟s office that revealed a witness‟s
own culpability]; People v. McAlister (1976) 54 Cal. App. 3d 918, 923-925
[defense attorney sent letter addressed to the grand jury and the judge outlining
the names of material alibi witnesses; held defendant failed to discharge burden
of showing prosecutor failed to bring counsel‟s letter to the attention of the
grand jury.]; People v. Coleman (1978) 84 Cal. App. 3d 1016, 1020 [no
indication that district attorney was aware or knew of existence of self-defense
evidence obtained by prison officials.]

        Furthermore, the legislature enacted Penal Code § 939.71, eight years
after the statutory disclosure provisions were enacted in 1990 under Penal Code
§ 1054. Under the discovery statute the prosecution is required to disclose
matter if that information is known or is reasonably accessible to the
prosecution. Penal Code § 1054.1 (e) expressly requires the prosecution to
disclose “any exculpatory evidence” if it is “in the possession of the prosecuting
attorney” or “the prosecuting attorney knows it to be in the possession of the
investigating agencies.” (In re Littlefield (1993) 5 Cal. 4th 122, 135 [duty includes
information reasonably accessible to prosecutor]; People v. Little (1997) 59 Cal.
App. 4th 426, 429, 433.)

       It is evident from a reading of Penal Code § 939.71 that it bears none of
the same language set forth in Penal Code § 1054.1. Had the legislature so
intended they could have included similar language in order to require the
prosecuting attorney to seek out, obtain, and disclose known or reasonably
accessible exculpatory evidence within the prosecuting attorney's custody or
control. (In re Littlefield (1993) 5 Cal.4th 122, 134-135; People v. Jordan (2003)
108 Cal.App.4th 349, 361.) Therefore, the court declines to interpret Penal Code
§ 939.71 as imputing knowledge to the prosecutor in the grand jury context.




                                                                                   20
      The court shall address defendant‟s individual claims to determine
whether the prosecutor was aware of the omitted evidence and whether the
evidence reasonably tended to negate guilt.

      1.     Defendant’s Maid

       The court finds that the grand jurors were not provided with candid
information concerning Mr. Gressett‟s maid when they inquired whether
“Gressett‟s maid, was she asked if there were sheets soiled with feces and blood
found in the laundry hamper or garage?” (Def. Mt. Exh. AA.) The prosecutor
told the grand jury that Ms. Rodriguez‟s “did not ordinarily do sheets at Mr.
Gressett‟s house. That wasn‟t part of her work, doing sheets.” [GT862.]
However, Mr. Gressett‟s maid, Josephina Rodriguez, was interviewed on March 9,
2009. She stated that she cleaned defendant‟s house twice a month. Her job
duties included removing the bed linens even though she did not wash the
bedding she took off the bed. Instead she would place bedding items on top of
the washing machine. She was specifically asked multiple times if she ever
noticed any stains or anything else that was unusual in regard to the bedding.
Ms. Rodriguez told the interviewers that she had never noticed any stains or
anything else unusual on the bedding that she stripped from the bed. [Def. Mt.
Exh. CC, taped statement of Josephina Rodriguez.]

      The court finds that even had the grand jury learned that it was Ms.
Rodriguez‟s duty to remove the sheets, such evidence would not reasonably have
tended to negate defendant‟s guilt in light of the fact that the record indicated
she was not the person that removed the soiled sheets. There was evidence that
the sheets in question were removed by the defendant. Ms. Doe testified that
defendant removed the sheet that was stained with blood and feces from the
bed while she was still at his apartment. [GT46.] As a result, the grand jury
learned that the sheet could not have been taken off the bed by the
housekeeper. This would explain therefore why she never noticed any stains on
the bedding. Accordingly, the grand jury was not denied evidence that
reasonably tended to negate guilt in this instance.

      2.     DNA Testing of Blood Stains

       The grand jurors asked who they could ask about the possible blood
stained foam mattress pad and what the results were. [Def. Mt. Exh. AA.]
Defendant specifically complains about the People‟s offer of proof about blood
testing. The court finds that the offer of proof accurately informed the grand jury
that Ms. Doe was excluded on most of the areas tested. The prosecutor
expressly told the grand jury that the mattress pad stain was tested for DNA and
that Ms. Doe‟s profile was excluded as a possible contributor to those profiles.




                                                                                 21
       The prosecution asserts that Ms. Doe was excluded from seven of the
eight areas tested; neutral as to the eighth; and six of the eight areas tested
negative for blood. In other words there was no evidence showing Ms. Doe‟s
blood or feces was present. [Def. Mt. Exh. BB, pp.2, Report of Brian Harmon.]
Mr. Harmon‟s report explains that there was, however, an unknown female
associated with seven of the areas and two areas where there was a weak
presumptive test showing possible blood. Defendant could not have been
prejudiced by the grand jury not being told that another female was profiled in
the other areas, two of which contained blood. Ms. Doe‟s profile was not found in
the areas containing blood. [Id., p.4-5.] The fact that most of the areas tested
negative for blood is not exonerating because they were excluded as belonging
to Ms. Doe. The reasonably inference being that there was no evidence of Ms.
Doe‟s blood found on the mattress. Accordingly, the court does not find that the
evidence reasonably tends to negate guilt in this instance.

      3.     Defendant’s Ex-Girlfriends

        The defendant contends that the prosecutor failed to furnish the grand
jury with exculpatory evidence concerning his former relationships. The court
finds that the prosecution accurately informed the grand jury that Mr. Gressett‟s
ex-wife as well as an ex-girlfriend, a judge of the Contra Costa Superior Court,
had never had any forcible contact with the defendant in those relationships
[GT852, 862, 870, 873.] The offer of proof itself that defendant had no prior
forcible conduct is exculpatory for defendant.

      4.     Evidence of Ms. Doe’s Character for Untrustworthiness

        Defendant claims in his motion to dismiss that the People submitted
improper positive character evidence of Ms. Doe without submitting negative
character evidence that she was not honest and trustworthy. The court finds that
if the prosecution were aware of evidence that could have rebutted the evidence
of Ms. Doe‟s character for truthfulness, they were under a duty to disclose it.
(Penal Code § 939.71.) The court finds, however, that there was no such
evidence which revealed Ms. Doe‟s character for lack of trustworthiness and
honesty.

       The court rejects defendant‟s claim that Ms. Doe made false accusations
that Carlos Vega had sexually-transmitted disease. [Def. Mt. Exh. M, pp.13-14,
Transcript of Tavanier interview.] There is nothing to support defendant‟s claim
that this accusation was false. Therefore, such an exchange did not constitute
evidence of Ms. Doe‟s lack of honesty.




                                                                                22
        The court finds that there is no evidence that Ms. Doe committed
“burglary to steal prescription medication” – when she entered the home of her
uncle to obtain prescription drugs. [Def. Mt. Exh. N, pp.21-22, Transcript of
Strauss-Ryan interview.] Ms. Doe‟s cousin describes text messages between
herself and Ms. Doe the day the news of the assault became public. Ms. Doe
had a sore throat and possible strep throat. Her cousin gave Ms. Doe permission
to go to her parents‟ house and suggested she might consider taking sleeping
pills that were located in the house. Nothing in this statement supports a claim
that Ms. Doe‟s conduct involved moral turpitude or any sort of criminal behavior.

        Nor is there any evidence that Ms. Doe‟s “assault[ed] [a] hospital security
officer” at Bellevue Hospital, New York leading to an “arrest for criminal
offenses.” [Def. Mt. Exh. L, Ms. Doe‟s interview 11-5-08 #2, pp. 13-15.] Ms. Doe
told law enforcement that she was taken to the hospital in New York after
passing out and hitting her head. She had to wait for several hours and when
she tried to leave, the medical personnel attempted to stop her and they got into
a fight. Ms. Doe believed she was detained, booked, charged and then “they
dismissed it.” [Id. p. 14.] She did not know, however, what the underlying
charge was except that it related to an “assault on an emergency medical
technician….” [Id. p.15.]

       Even assuming that Ms. Doe was arrested the court finds that such
evidence was not admissible. It has long been held that evidence of a person‟s
prior arrests is inadmissible. (People v. Anderson (1978) 20 Cal. 3d 647, 650.)
As to defendant‟s claim concerning Ms. Doe‟s assaultive conduct, the court does
not find such conduct indicative of moral turpitude and neither assault nor
battery may be used to impeach a witness‟s character for truthfulness. (People
v. Lopez (2005) 129 Cal.App.4th 1508, 1522.) Accordingly, any evidence of the
alleged assault by Ms. Doe was irrelevant to her reputation for trustworthiness
and honesty.

       Neither was there was any evidence of an “auto burglary” of Ms. Doe‟s
own mother‟s car. [Def. Mt. Exh. L, Ms. Doe‟s interview 11-5-08 #2.] Defendant
claims that Ms. Doe committed a burglary when she sneaked into her mother‟s
impounded car to get a bag for her mother. The record reveals, however, that
Ms. Doe went into the car at her mother‟s request while her mother was present.
[Def. Mt. Exh. L, Ms. Doe‟s interview 11-5-08 #2, pp. 16-19.) There is no
evidence this incident resulted in any action by law enforcement against Ms.
Doe. Accordingly, any evidence was irrelevant to her reputation for
trustworthiness and honesty. It did not reasonable tend to negate guilt.




                                                                                 23
       Finally, defendant claims that Ms. Doe‟s admission that she lied to her
parents while she was under age 16 should be admitted to show untruthfulness.
[Def. Mt. Exh. L, Ms. Doe‟s interview 11-5-08 #2.] In her own words, she said
that when she was a juvenile, she told her parents that she had done “a whole
bunch of shit just to scare them.” [Id., p. 19.] As a consequence they put her in
a rehabilitation program when she was 16 years of age. The court finds this
does not support the conclusion that Ms. Doe lied to her parents or was in any
way untruthful. Nor is there any evidence as to what exactly the alleged
falsehoods were. Moreover, the court finds that Ms. Doe‟s conduct toward her
parents as a juvenile to be so remote as to have no relevant bearing on her
credibility as an adult for the purpose of the grand jury proceedings.

      5. Ms. Doe’s Statements of What Time She Left Her Office

       Defendant contends that the prosecution failed to introduce evidence to
impeach Ms. Doe‟s statements about what time the alleged incident started. In
particular, the prosecution failed to correct the record as to the distance between
the building where Ms. Doe had worked and the one where the defendant was
working on the day of the sexual assault. There is no merit to this. The court
finds that the grand jury was not left with any false impression in this regard.
The complete transcript and recording of Ms. Doe‟s two interviews relating to the
time the encounter began was presented to the grand jury for their review. [GT
Exh. 22; GT Exh. 23, pp. 29, 30; Ms. Doe interview, 9-26-08; GJ Exh. 30; Ms.
Doe interview 11-05-08.]

        In Ms. Doe‟s interview on September 26 she claims to have left for Mr.
Gressett‟s residence at 11:30 a.m. [GT Exh. 23, p. 13.] She repeats this
assertion during her November 5th interview. [GJ Exh. 30, p. 17.] Her phone
records however indicated that Ms. Doe was still texting Mr. Gressett at 12:27
p.m. [GT Exh. 30, p. 8-10.] Ms. Doe explained in her statement that the reason
for the delay could have been because there was uncertainty about who was
going to drive, as well as to where he had parked his park, and the fact that they
worked in different buildings that were a short distance apart. [GT Exh. 30, pp.
9-10.]

       Moreover, Ms. Doe testified before the grand jury that she left her office
at 11:30, but conceded there was a delay and that they did not leave for
defendant‟s residence until after 12:00. [GT32.] This conforms to the record
before the court. The grand jury was able to hear Ms. Doe‟s testimony and
reviewed both of her interviews with law enforcement as to the time that
defendant picked Ms. Doe up from the office. The grand jurors had the
opportunity to assign however much or little importance they wished to the




                                                                                    24
discrepancy. As a result, defendant has failed to establish that the prosecution
failed to present evidence that reasonable tended to negate guilt in this instance.

      6. Redacted Copy of a Sheriff’s Report

       Defendant contends that there was exculpatory evidence in that
defendant had used a redacted copy of the sheriff‟s report [GT Exh. 27, Sheriff
Report in People v. Florez, dated October 14, 2005] that had been found in the
nightstand at his residence, during a training seminar held on February 28, 2007.
[EH Exh. G (Arbitration Hearing, pp. 142-150).] He asserts that District Attorney
Investigator Arnold Lui could have testified that he knew that Mr. Gressett had
used the Florez case as a sample sexual assault case in a training seminar that
Mr. Gressett conducted on February 28, 2007. [EH Exh. G.; EH 256.]

        The court does not find that evidence defendant had used a redacted
copy of the Florez case in a seminar in February 2007 could reasonable tend to
negate guilt when defendant was found in possession of the report a year and
half later in October 2008. Even had the grand jury known that defendant had
used the report in a seminar, the evidence before the grand jury indicated that
the report was found in the same nightstand where the gun, handcuffs and ice
pick were found. The record further reflects that defendant‟s own statements --
that he needed ideas for the bedroom in connection with his assignment to the
sexual assault unit -- provided the grand jury with evidence upon which to infer
that his possession of the redacted Florez report was for reasons other than use
in a professional capacity. Accordingly, the court concludes defendant has failed
to establish that the prosecution failed to present exculpatory evidence that
reasonably tends to negate guilt in this instance.

      7. Conformity With the Protocol

        The Protocol was an investigative procedure developed by the Contra
Costa District Attorney‟s Office. The defendant asserts that the prosecution‟s
failure to follow the Protocol‟s provisions should have been presented to the
grand jury because it constituted exculpatory evidence in that it impeached those
witnesses who claimed adherence to its provisions. The record indicates that
senior Deputy District Attorney Mr. Hope and Mr. Sequeira, both testified that the
law-enforcement homicide protocol was used in the case. [GT714.] District
Attorney Investigator Daryl Jackson testified that he has participated in the
investigation of the defendant as part of the Protocol. [GT810.] The failure to
follow the provisions of the Protocol was exculpatory in that it showed the
investigation was less than complete and thorough.




                                                                                25
        Defendant cites numerous provisions of the Protocol that were not
adhered to including the fact that the Attorneys General are not eligible to
participate in the Protocol [Def. Mt. Exh. D, p. 4, 15]; interviews of law
enforcement officers are to normally be preceded by a statement that informs
them that the interviews are conducted on a voluntary and consensual basis and
are not conducted under the compulsion of the Lybarger cases [Def. Mt. Exh. D,
p. 39 ref. 263; Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822]; the
Sheriff‟s Crime Lab is responsible for physical evidence [Def. Mt. Exh. D, p. 26,
32]; and prior to the final relinquishing of the scene, processors are required to
attempt to reconcile the scene with the testimonial evidence in the case. [Def.
Mt. Exh. D, p. 34.]

       The court finds that whether or not the investigation literally complied
with the provisions of the Protocol was collateral to the main issue before the
grand jury; namely whether or not Ms. Doe consented to the forcible sexual
encounter with the defendant. Accordingly, defendant has failed to establish
that the prosecution failed to present exculpatory evidence that reasonably tends
to negate guilt in this instance.

      8. Pre-Existing Medical Condition

       Defendant contends that records of Ms. Doe‟s pre-May 8, 2008 medical
history show that she had previously complained of similar symptoms that she
had attributed to defendant‟s alleged assault. The San Francisco medical records
show that Ms. Doe complained of a pain in the abdomen. This complaint by Ms.
Doe was made on July 5, 2007. She described the pain as having sharpness and
lasting for 20 minutes. She further described her pain as “more pelvic in
nature.” It also caused her nausea and sweating. [Def. Mt. Exh. F, Medical
Records, San Francisco Kaiser Permanente.)

        The court finds that nothing in the San Francisco medical records suggest
that it was a gynecological related problem that Ms. Doe was suffering from in
2007. The court finds that a single complaint of a “pain in the abdomen” to be
too isolated and vague to support an inference that the medical complaints Ms.
Doe made after the alleged sexual assault were the function of any pre-existing
condition. Accordingly, the court finds that the records do not reasonably tend to
negate guilt in this instance.




                                                                                26
         9. Medical Problems Incident to the Sexual Assault

       Defendant contends that the prosecution should have presented evidence
of the falsity of Ms. Doe‟s statements where she claimed that as a result of the
alleged assault committed by the defendant that she had suffered medical
problems, including a damaged or destroyed ovary, a bladder infection and that
she had lost her ability to have children. Based on the statements of Ms.
McLaughlin [GT397]10 and Ms. Henderson [GT425-428]11 along with the
testimony of Ms. Doe12 [GT92] and Ms. Smith [GT237, 242]13 the grand jury
were informed that Ms. Doe had told these persons that she was concerned
about or implied that she had a bladder infection and had suffered ovarian
damage from the alleged assault thereby losing her ability to have children.

        The medical records from Kaiser Hospital in Walnut Creek and Martinez
[GT Exh. 31, 32] clearly indicated that there was no evidence Ms. Doe had an
infection or any damage to her ovaries. The records contained all the relevant
evidence to impeach Ms. Doe‟s express or implied claims. The court also finds
that the medical records were comprehensible and coherent. The court does not
find that there was any need for the prosecution to present expert testimony
interpreting those records. There is nothing to suggest that the grand jurors
would not have been able to understand the medical records or appreciate the
exculpatory nature of those records.

        The medical records introduced as Exhibit 31 showed that the antibiotic
Ciprofloxacin was dispensed to Ms. Doe on June 5, 2008. The medical records
informed the grand jury that a urinalysis was performed and that the results
came back negative for any signs of infection. [GT Exh. 31, p.3, 4.] There were
other inconsistencies in Ms. Doe‟s testimony. The record furnished other
exculpatory evidence. Ms. Doe testified that she takes medication when she
experiences the symptoms and homeopathic medicine to help with the pain.
[GT115.] Yet the records clearly indicate that there is no determinative cause
identified for Ms. Doe‟s condition. [135.] The medical records also revealed no
evidence of any damage to Ms. Doe‟s ovaries. [GT Exh. 31, 8-9; Exh. 32.]
Defendant has failed to establish that the prosecution failed to present
exculpatory evidence that reasonably tends to negate guilt in this instance.



     10
        Def. Mt. Exh. K, Transcript of interview of Theresa McLaughlin, p. 5 [Ms. Doe said there was trauma to her
ovaries and doctors think she was never going to have children].
     11
        Def. Mt. Exh. J, Transcript of Henderson interview, p. 8 [Ms. Doe said she had an ovary infection and might not
be able to have children].
     12
        GT110-112 [Ms. Doe testified to problems with her bladder and the treatment she sought.
     13
        Def. Mt. Exh. H, Transcript of October 2, 2008 interview of Melissa Smith, p. 1-2 [Ms. Smith told interviewer
that Doe had complications with her bladder and her ovary; she had sustained problems with one of her ovaries].




                                                                                                                    27
      10.    Pornographic Photo Sent to Defendant Prior to May 8, 2008

       Defendant claims the grand jury should have been made aware that it
was Ms. Doe, alone, who elected to send the defendant a graphic, sexual photo
shortly after the time when she alleged that she had been sexually assaulted.
The court finds, however, that the evidence before the grand jury indicates that
indeed it was Ms. Doe‟s idea to send the text and that she did so on her own
phone.

        Ms. Doe testified that she and her sister went out for drinks on Saturday.
It was she who sent the defendant a “pop-up” that showed a girl being “T-
bagged” which meant that a man‟s testicles are dropped in her face. [GT75.] Ms.
Doe admitted that she was the one who sent it to the defendant via her phone.
[GT77.] Ms. Doe explained that the reason she sent the photo was because she
“really wanted to push the envelope. I wanted to see whether or not…he‟s just
cool with this kind of thing and someone you know defecating on themselves in
the middle of consensual sex to him is all right…I was trying to figure out
whether or not he realized the magnitude of what had happened.” [GT77.]

       At no time does Ms. Doe deflect responsibility for sending the T-bagging
photo. She never testified either expressly or impliedly that her sister, Ms.
Climer, was either responsible or involved in this. This is consistent with Ms.
Climer‟s testimony before the grand jury which was that Ms. Climer had
knowledge of only one text message sent that was “innocuous” something like
“What‟s up. How are you.” [GT147.]

       The grand jury was also provided with Ms. Doe‟s prior inconsistent
statement made to police on November 5, 2008 in which Ms. Doe claimed that
her sister, Debra Climer, had participated in sending the photograph. [GT Exh.
30, p. 19.] Ms. Doe claimed the photograph was sent with her sister who,
according to Ms. Doe, had earlier promoted the idea of sending Mr. Gressett text
messages so they could make him comfortable and then have him killed. [GT
Exh. 30, p. 17]. The photograph was sent, according to Ms. Doe, while she and
Ms. Climer were drinking at a local bar and were a little “liquored up.” [GT Exh.
30, p. 17.]

       The court finds that it was reasonable for the grand jury to have inferred
from Ms. Doe‟s testimony and that of Ms. Climer that it was Ms. Doe who elected
to send the defendant a graphic, sexual photo shortly after the time when she
alleged that she had been sexually assaulted. The grand jury having heard Ms.
Doe and Ms. Climer‟s testimony as well as reviewed the inconsistencies in Ms.
Doe‟s statements of November 5, 2008 were capable of resolving the
discrepancies, if any, in their testimony. Accordingly the court finds that the


                                                                                  28
defendant has failed to show that the prosecution withheld exculpatory evidence
reasonably tending to negate guilt in this instance.

         11.       Ms. Doe’s Statements “Strap On”

       Defendant contends that the prosecutor failed to present evidence to the
grand jury on the issue of Mr. Gressett reasonable belief in Ms. Doe‟s consent.
He asserts that neither Ms. Doe nor any other witnesses were questioned during
the grand jury proceedings about Ms. Doe‟s statements about anal sex.
References to Ms. Doe‟s sexual history and her own statements were removed
from the transcripts that were given to the grand jurors.

       In the instant case, Ms. Doe testified that at the time defendant first
attempted to sodomize her that "[y]ou're just not allowed there was kind of [her]
attitude." [GT39.] She answered in the affirmative to the prosecutor‟s question
that she was “not into that." [GT39.] Also, in Jane Doe's interview with
investigators that was introduced as an exhibit to the Grand Jury, Jane Doe said
of anal sex, "I don't do that." [GT Exh. 23, p. 2.]

       Defendant contends that Ms. Doe was not asked during her grand jury
testimony about any of her statements that indicated she had in fact in the past
been a willing participant in anal sex. In particular the prosecution failed to
introduce evidence that Ms. Zelis-Holder had told investigators that Ms. Doe had
said she was a member of “the club” meaning she had participated in anal sex.14
The prosecution redacted the portion of Ms. Doe‟s statement to police on
November 5, 2008 where she stated that Ms. Zelis-Holder has said there were
two ways for a person to be “in the club…[e]ither you receive it or you‟ve given
it…” and Ms. Doe, said she could “count [her] in like on both terms…” [Def. Mt.
Exh. L, p.6-7, Unredacted transcript of Ms. Doe‟s interview 11-5-08.] Neither did
the prosecution inform the grand jury about a separate conversation that took
place in the office of Deputy District Attorney Terri Leoni where Ms. Leoni, Ms.
Doe and Deputy District Attorney Joanna Schonfeld were present. Ms. Doe
repeated her claim to be a member of the club by both giving and receiving anal
sex. [Def. Mt. Exh. P, Tape Recorded statement of Ms. Schonfeld‟s.]

       In the unredacted version, Ms. Doe explained to law enforcement
however that she had made this up along with a story that she had used a
“strap-on” device in an effort to shock Ms. Zelis-Holder. Ms. Doe admitted to the
police that she had put on the strap-on device but that she never had used it in
any sexual manner. [Def. Mt. Exh. L, p.6-7, Unredacted transcript of Ms. Doe‟s
interview 11-5-08.] Ms. Doe testified at the evidentiary hearing on the non-
statutory motion to dismiss that the statements she made to Ms. Zelis-Holder

    14
       Tape Recorded Statement of Ms. Zelis-Holder, October 3, 2008 located on Def. Exhibit compact disc also
containing Def. Mt. Exh. S, CC, P.)


                                                                                                                29
that she had used a strap on device for anal sex were made “in jest.” [EH 187-
188.] Ms. Doe also testified that she had told Ms. Johanna Schonfeld the same
thing and she had only done so in jest. (Id.) Accordingly, the court finds that
there was no evidence that Ms. Doe had ever used a strap-on device to engage
in anal sex. Certainly there was no evidence Ms. Doe had ever done so with the
defendant, or that defendant had ever been informed of these statements made
by Ms. Doe. [Def. Mt. Exh. D, Tape Recorded statement, Terri Leoni.] To this
extent the evidence was inadmissible. (Evidence Code § 1103(c)(1) and 782.)

       Furthermore the court finds based on Ms. Doe‟s statement given on
November 5, 2008 that the portions of Ms. Doe‟s statement that were redacted
and not shown to the grand jury did not reasonable tend to negate guilt. These
portions concerned Ms. Doe admitting that she had worn a strap on device but
had never had anal sex using it [Def. Mt. Exh. L #2, pp.6-7, Ms. Doe‟s interview
11-5-08]; that she did not want to engage in anal sex with defendant [Id., pp.
44-45]; the two times in her previous history when she had tried anal sex she
did not enjoy it [Id., pp. 44-45]. This evidence along with her most recent
testimony before the court that what she had said to Ms. Zelis-Holder and Ms.
Schonfeld was said in jest, which the court finds consistent with what she told
law enforcement earlier, do not reasonably tend to negate guilt.

       It would not have impacted the grand jury‟s determination of Ms. Doe‟s
credibility because Ms. Doe never previously stated that she had never engaged
in anal sex. She testified that she did not want to engage in anal sex with
defendant. As a result, any comments Ms. Doe made about anal sex in her
history would not be admissible as inconsistent or as impeachment of her
credibility. For this reason, defendant‟s argument fails that the prosecution was
obligated to present such statements in light of Mr. McSweeney‟s testimony that
he has never known Ms. Doe to make things up.

        Furthermore, as noted above, Ms. Doe‟s statements to her co–workers
that she had both received and given anal sex were made in jest to shock and
impress. This was consistent with what she had told investigators –-she had
worn a strap on device but had never used it to have anal intercourse. As such,
there was no legitimate impeachment value to the redacted portions of Ms. Doe‟s
statement or to Ms. Schonfeld‟s, Ms. Leoni‟s or Ms. Zelis-Holder‟s statements –-
all of which were properly excluded. Defendant has failed to establish that the
prosecution failed to present exculpatory evidence that reasonably tends to
negate guilt in this instance.




                                                                                30
       12.    Ms. Doe’s Statements About Use of Guns

        In the interview Ms. Schonfeld had with law enforcement she stated that
“Terri” had told her Ms. Doe said she had either “done it or was open to doing it”
in reference to being penetrated by or having a gun inserted in her. [Def. Mt.
Exh. P, Tape Recorded statement Schonfeld.] Ms. Schonfeld was not certain of
the accuracy of Terri‟s statements because she had no recollection of them and
had learned of this after the fact from “Terri.” In her statement to the police,
Ms. Leoni said that she had told Ms. Doe that defendant had used a gun on one
of his girlfriends in a sexual manner, and Ms. Doe responded “I wouldn‟t mind
that.” [Def. Mt. Exh. O, Tape Recorded statement Leoni.] Neither of these
statements were presented to the grand jury.

       The fact that defendant had used a gun in a sexual fashion with one of his
former girlfriends is hardly exculpatory. Moreover, there was evidence
introduced before the grand jury that Ms. Doe had indicated that she liked
involvement of weapons during sex. [GT646.] Ms. Doe said “yeah, that‟s cool” in
response to Ms. Tavenier‟s remark that Ms.Tavenier liked to have sex with cops
using weapons. [GT106.] Knowing this, the grand jury still indicted the
defendant. The statements were not relevant to impeaching Ms. Doe.

       There is no evidence that defendant was ever informed of the comments
attributed to Ms. Doe by Ms. Schonfeld or Ms. Leoni. [Def. Mt. Exh. D, Tape
Recorded statement, Terri Leoni.] Evidence of specific instances of a victim‟s
sexual conduct, other than with the defendant, is not admissible in order to
prove consent by the victim. (Evidence Code § 1103(c)(1).) As a result, Ms.
Doe‟s statements could have no effect in impeaching Ms. Doe or in giving
defendant any basis to believe Ms. Doe was consenting to being assaulted.
Accordingly, the statements were not relevant to the issue of whether or not Mr.
Gressett had a reasonable belief in consent. Defendant has failed to establish
that the prosecution failed to present exculpatory evidence that reasonably
tended to negate guilt in this instance.

       13.    Former Boyfriend Used Ice with Ms. Doe

        For the same reasons, evidence that Jon McSweeney, Ms. Doe‟s former
boyfriend, had told investigators that he kissed Ms. Doe‟s belly while he had ice
in his mouth [Def. Mt. Exh. Q, Tape Recorded Statement McSweeney] would not
reasonably have tended to negate guilt. Kissing a person on their stomach with
ice in their mouth, and inserting ice cubs using an ice pick are distinctly different
uses of ice. The court finds that the defendant has failed to establish that the
prosecution failed to present exculpatory evidence that reasonably tends to
negate guilt in this instance.


                                                                                   31
       14.    Prior Inconsistent Statements of Witnesses

              i. Melissa Smith – Breakup With Boyfriend

       Defendant contends that the prosecution failed to inform the grand jury
that Ms. Doe‟s boyfriend, Officer Llamas, had broken up with her on Saturday
August 23, 2008 [Def. Mt. Exh. V, Statement of Weiss] which was the same day
Ms. Doe contacted Ms. Smith distraught [GT230-231] because she had been
raped in May. [GT231-232.] Defendant‟s theory is that if Ms. Doe was distraught
on August 23, 2008, it likely was because she had just broken up with Officer
Llamas and not because she was raped by the defendant. The court finds this
speculative. Moreover, the fact Ms. Doe was distraught on August 23, 2008
because she had just broken up with Officer Llamas does not preclude her from
also being upset because she was allegedly raped by the defendant. The court
does not find this evidence could reasonably tend to negate guilt in this instance.

       Defendant further alleges that Officer Patrick Llamas, in his interview, told
investigators that Ms. Doe told him that she had something “worked out” to save
her job. The prosecution has filed portions of Officer Llamas‟s statement to
investigators. (Peo. Opp. Exh. G [Statement of Patrick Llamas, 10-7-08.] Having
reviewed the Ms. Llamas‟s statement the court finds no merit to defendant‟s
claim.

              ii. Jon McSweeney – Ms. Doe Said Defendant Put Gun
                   Inside Her Vagina

       Defendant contends that the prosecution failed to introduce evidence that
when Mr. McSweeney was interviewed by investigators on October 15, 2008, he
told them that Ms. Doe claimed to have been attacked and that a “gun had been
put inside her.” [Def. Mt. Exh. Q, Tape Recorded Statement McSweeney.] Mr.
McSweeney testified that Ms. Doe told him that the gun was “put to her head. . .
I guess to the best of my recollection to perform oral copulation.” [GT588.] Mr.
McSweeney did testify that he recalled saying that Ms. Doe told him that the gun
was inserted inside of her. [GT589.] Accordingly, the court finds that there was
no material inconsistency in Mr. McSweeney‟s testimony and that of his
statement to investigators.

              iii.   Debra Climer – Change in Demeanor

       Defendant contends that the prosecution failed to introduce evidence to
impeach Ms. Climer‟s characterization of her sister as an “outgoing, witty and
strong” person [GT144], but now she “will never be the same as before….”
[GT148.] The court does not find that evidence of Tiffany Strauss-Ryan‟s


                                                                                  32
statement to police concerning the work stress Ms. Doe experienced because of
the child molestation cases she worked on and her need to seek therapy to cope
would have impeached Ms. Climer‟s testimony as to her characterization of Ms.
Doe. [Def. Mt. Exh. N, Statement Strauss-Ryan.]

       Nor would Jon McSweeney, Ms. Doe‟s former boyfriend‟s statement that
Ms. Doe was possibly taking anti-depressants during their relationship have
impeached Ms. Climer‟s testimony. Mr. McSweeney could not specify what if any
medications Ms. Doe might have taken. He told investigators that she was happy
go lucky for the most part and he did not see her get angry easily or frequently.
[Def. Mt. Exh. Q, Tape Recorded Statement McSweeney.]

       Finally neither would evidence from Patrick Graber that Ms. Doe‟s
demeanor had always been volatile and that she prone to get angry easily have
impeached Ms. Climer‟s testimony. [Def. Mt. Exh. R, Tape Recorded Statement
Graber.] Whether Ms. Doe was prone to anger does not contradict Ms. Climer‟s
observation as to her sister‟s change in demeanor. Mr. Graber also specifically
described Ms. Doe as having a changed demeanor after the alleged assault to
the extent that she reacted very emotionally and angered easily. His interactions
with Ms. Doe, however, were not for very long and not frequent after the alleged
assault.

       Nor does the court find the fact that while Ms. Doe might have had a
history of mental health concerns, it was not relevant of the grand jury‟s
determination of the weight to place on Ms. Climer‟s testimony. [Def. Mt. Exh. L,
Ms. Doe‟s interview 11-5-08.] The court finds that such evidence does not
reasonably tend to negate guilt.

                 iv. Carlos Vega – Change in Demeanor

      Defendant contends that the prosecution elicited testimony from multiple
witnesses that indicated that Ms. Doe‟s mental demeanor had changed for the
worse after May 8, 2008, but failed to introduce evidence that Mr. Vega thought
Ms. Doe seemed to be the same and that he noticed no difference in her
demeanor. [Def. Mt. Exh. S, Tape Recorded statement Vega.]

      The court does not find this to be an accurate characterization of Mr.
Vega‟s statement. In fact, he told investigators that Ms. Doe appeared to have
been crying and was upset, but that he did not observe any other injuries.
Mr.Vega also told investigators that the reason he was meeting with Ms. Doe to
console her and give her support for what had happened to her. For these
reasons, the court does not find Mr. Vega‟s prior statement to be exculpatory. It
does not reasonably tend to negate guilt.




                                                                                33
             v. Diana Weiss – Changed Demeanor

       Defendant contends the prosecution failed to introduce evidence to
impeach Ms. Weiss‟s characterization of Ms. Doe‟s change in demeanor. [GT290.]
The court finds there is no merit to these claims for the same reasons set forth in
its analysis of defendant‟s challenge to Ms. Climer‟s testimony.

             vi. Theresa McLaughlin – Changed Demeanor

       Defendant contends the prosecution failed to introduce evidence to
impeach Ms. McLaughlin‟s characterization of Ms. Doe‟s change in demeanor.
[GT398-400.] The court finds there is no merit to these claims for the same
reasons set forth in its analysis of defendant‟s challenge to Ms. Climer‟s
testimony.

               vii. David Brown – Emotional Instability

       Defendant contends the prosecution failed to introduce evidence that Mr.
David Brown, who was a supervising attorney in the Contra Costa District
Attorney‟s Office in 2008, told investigators on October 3, 2008 that he had
concerns about Ms. Doe‟s emotional stability. [Def. Mt. Exh. W, Statement of
Mr. Brown, p. 6.] Ms. Doe had cried after she was critiqued during a training
session. The court finds that such evidence would not reasonable have tended to
negate guilt in this instance.

      15.    Paul Sequeira – June 17th Memo & Briefing Notes of
             Investigator Hall

        Defendant contends that an inconsistency in Mr. Sequeira‟s memo of June
17, 2008, which said Ms. Doe had reported the incident to “no one” [Def. Mt.
Exh. X] and a later version viewed October 9, 2008 which said she had reported
it to “no one in law enforcement” [Def. Mt. Exh. Y], reflected an effort to hide
the truth. This information would have impeached both Mr. Sequeira and Ms.
Doe. The court finds that there is no evidence to support the conclusion that
this reflected any effort to hide the truth. The second version of the memo
accurately reflects what the grand jury knew – that by June 17, 2008 Ms. Doe
had not reported the incident to law enforcement.

       Defendant further contends that notes taken by Investigator Hall during a
briefing with Mr. Sequeira and Mr. Greenwald on September 22, 2008 could have
impeached Ms. Doe concerning when the event began. Ms. Hall‟s notes indicate
that the incident began “on duty and lasted until evening”; Ms. Doe had a
“manic, up and down unstable personality”; Ms. Doe had voluntarily seen
therapists before; Ms. Doe‟s contract probably won‟t be renewed “but she could


                                                                                34
spin it as retribution….” [Def. Mt. Exh. Z.] This notation presents pure
speculation on the part of Ms. Hall as to what Ms. Doe might or might not do in
connection with not being hired and her reporting of the incident. The court does
not find this to constitute exculpatory evidence that could reasonable tend to
negate guilt.

      16.    Holly Mantle-Stransky – Prior Kinky Sex

       Defendant contends that the statements that Ms. Mantle-Stransky gave to
Detective Sylvia would have significantly impeached Ms. Doe‟s version of her
prior sexual contact with Mr. Gressett. There is no merit to this. Ms. Mantle-
Stransky testified that she could not say how many times Ms. Doe and the
defendant had previously had sex. [GT189.] She believed they had had “sexual
contact” on three prior occasions [GT193] and Ms. Doe described defendant as
“pretty kinky kind of guy.” [GT193.] In a statement given to Detective Sylvia of
the Martinez Police Department on September 30, 2008 Ms. Mantle-Stransky
stated that Ms. Doe had informed her that she had had “sexual intercourse” with
Mr. Gressett three times [Def. Mt. Exh. U, p. 2, 7.]

       The court finds Ms. Mantel-Stranky‟s statement was consistent with her
testimony. In her interview she conceded that she didn‟t know the exact number
of times Ms. Doe and the defendant had had sex. [Def. Mt. Exh. U, p. 7.]
Consistent with her testimony, in the interview she said she and Ms. Doe had
only spoken on three different occasions about what was going on in her
relationship with the defendant. [GT189; Def. Mt. Exh. U, p. 7.] Her belief that
had had sex on three occasions appears to be calculated based on the number of
times she spoke with Ms. Doe on the phone and not in fact that Ms. Doe told her
she had had sex or sexual contact with defendant on three prior occasions.

       A careful reading of her statement suggests she was speculating as to the
number of times Ms. Doe and defendant had had sex. This conforms with Ms.
Mantle-Stransky testimony that she could not say how many times Ms. Doe and
the defendant had previously had sex. [GT189.] She believed they had had
“sexual contact” on three prior occasions. [GT193] Accordingly, the prior
statement Ms. Doe made to Ms. Mantle-Stransky do not reasonably tend to
negate guilt in this instance.

      17.    Melissa Smith – Ms. Doe Raped by Strangers

      Defendant contends that the prosecution failed to introduce exculpatory
evidence that Ms. Bravmann was told by Ms. Smith, to whom Ms. Doe had
spoken that she was abducted and raped by strangers. Deputy District Attorney
Courtney Bravmann was interviewed by investigators on October 23, 2008. [Def.
Mt. Exh. I, Statement Bravmann, p.2-3.] Ms. Bravmann told investigators that


                                                                              35
she spoke to Melissa Smith in late August, 2008. Ms. Doe had told Ms. Smith
that she had been walking down to Starbucks by herself in Martinez around 3:00
pm during the work day and that she abducted by somebody in a van at knife
point and taken to a townhouse in Martinez, where she was brutally raped for
several hours. Ms. Doe suffered a broken jaw and she had lost an ovary in the
process. (Def. Mt. Exh. I, pp. 2-3.]

        The prosecution questioned Ms. Smith on whether Ms. Doe had told her
she had broken her jaw and damaged her ovaries. [GT242.] She testified that
Ms. Doe, had never told her this. The prosecutor failed to ask Ms. Smith whether
Ms. Doe said she had been raped and abducted by strangers. The court finds
that such evidence is clearly exculpatory and that it reasonably tends to negate
guilt. However, for the purpose of Penal Code § 939.71, there is no evidence
before the court to support the conclusion that the prosecutors presenting the
matter before the grand jury were actually aware of Ms. Bravmann‟s statement.

        The record indicates that neither of the prosecutors were reported to have
attended the interview of Ms. Bravmann. [Def. Mt. Exh. I, pp. 2-3.] Ms.
Bravmann was interviewed by Martinez Police Department Sgt. John Sylvia,
District Attorney Investigator Mulligan, Deputy District Attorney Paul Sequeira,
and Special Agent with Department of Justice, Ramirez-Doty. Ms. Bravmann was
not called as a witness. (Id.) Defendant in his Johnson letter to the prosecution
dated October 1, 2009 did not request Ms. Bravmann be called as a witness.
[Peo. Opp. Exh.B.] Had it listed her as a witness it might have been inferred that
the prosecutors were aware of Ms. Bravmann‟s statement before the grand jury
proceedings had commenced because they would been the ones to have
disclosed it to the defense. There was no evidence at the evidentiary hearing as
to whether the prosecutors were aware of Ms. Bravmann‟s statement.
Accordingly, the court finds no violation of Penal Code § 939.71.

      18.    Ms. Doe’s Claims Against Her Employer and Monetary
             Settlement

        Defendant contends that the prosecutors‟ failure to introduce exculpatory
evidence that Ms. Doe filed a claim against her former employer, the County of
Contra Costa County, and settled the matter for $450,000. On April 8, 2009 Ms.
Doe‟s attorney wrote Contra Costa County counsel expressing an interest in
mediating Ms. Doe‟s claims. In particular her claims that by May 2008 after she
reported to her employer that she had been sexually assaulted by Michael
Gressett that she was subjected to a hostile work environment in having to work
in the same area as Mr. Gressett; and that she believed that she was denied a
permanent position in retaliation for reporting the sexual assault. [EH Exh. D
(letter to County counsel, April 8, 2009); EH Exh. D1 (confidential memo from
Paul Sequeira to Robert Kochly).]


                                                                               36
       On April, 2009 Jane Doe filed a complaint against the County alleging
discrimination under the provisions of the Fair Employment and Housing Act. [EH
Exh. A.] The complaint alleged the same claims asserted in the April 8 letter of
her attorney. More specifically she alleged she was harassed because after
reporting to Paul Sequeira, her supervisor, that she had been sexually assaulted
by a co-worker, Michael Gressett, she was subjected to a hostile work and that
no action was taken until Mr. Gressett was arrested. Ms. Doe also alleged that on
July 25, 2008 she applied for a permanent District Attorney position and believed
that she was denied a permanent position in retaliation for reporting a sexual
assault by co-worker Michael Gressett. She alleged that the hiring process was
determined by R. Kochly and Brian Baker as well as in part an oral exam. (EH
Exh. A.]

       The record indicates that on April 22, 2009, the district administrator for
the Department of Fair Employment and Housing (“DFEH”) notified Ms. Doe‟s
attorney that her complaint was closed effective April 21, 2009 because an
immediate right to sue notice had been requested. [EH38; EH Exh. B.] The letter
notified Ms. Doe that she had a right to sue and bring a civil action against the
Contra Costa County District Attorney‟s Office. In September 2009 the matter
went to mediation and the mediator proposed $450,000 as a settlement amount.
[EH39, 41, 97, 103.]

        Grand jury proceedings commenced on the morning of October 5, 2009,
and Ms. Doe testified before the grand jury on morning of October 6, 2009. Also
on October 6, 2009 the Board of Supervisors in a closed session recommended
ratifying the proposed settlement amount. [EH47, 105; EH Exh. C.] The closed
session usually occurred over the noon hour at the Board‟s recess. [EH47.] On
October 13, 2009 Ms. Doe signed a written settlement agreement. [EH Exh. E.]
The grand jury returned an indictment on October 19, 2009. The next day on
October 20, 2009 county counsel signed the settlement agreement thus finalizing
the agreement. [EH Exh. E.] Subsequently, Ms. Doe received $280,000 after
deduction of attorney fees. [EH239.]

        For the purpose of Penal Code § 939.71 the court finds that before
October 5, 2009 when the grand jury proceedings commenced and during the
course of those proceedings, the prosecutors presenting the case before the
grand jury, were not actually aware that Ms. Doe had filed a claim against the
District Attorney‟s Office with DFEH on April 9, 2009, nor were they aware that a
monetary settlement had been reached on October 6, 2009.




                                                                                37
       The record indicates that Robert Kochly, former District Attorney for
Contra Costa County, and Mr. Brian Baker, Chief Assistant district attorney, were
both aware before the grand jury proceedings commenced in October 2009, that
Ms. Doe had filed a complaint and had exercised her right to sue. [EH38, 94.]
They were also both aware that the matter had proceeded to mediation in
September 2009 [EH39, 41, 97] and that the mediator had recommended a
settlement of $450,000. [EH103.] Mr. Kochly did not report Ms. Doe‟s claim to
the deputies at the Attorney General‟s Office. [EH22, 23, 24, 50; EH Exh. A.] Nor
did Mr. Kochly inform anyone at the Attorney General‟s Office that mediation had
taken place and an amount was recommended by the mediator. [EH42.]

       Neither did Mr. Baker inform the Attorney General that a complaint had
been filed. [EH94-95, 113]. Mr. Baker never communicated to the deputy
attorneys general that a proposed settlement amount had been reached because
he believed that he was bound by the mediation rules of confidentiality. [EH103,
113.] Mr. Baker had signed a confidentiality agreement. [EH113.] Similarly, Ms.
Doe did not inform the grand jury or the attorney general that she had filed a
claim and that a proposed settlement was pending because she did not think she
was supposed to. [EH205, 222.] At the time she testified before the grand jury
she did not know that the Board of Supervisors had ratified her claim. [EH229-
230, 235-236.]]

       Based on the record, the court finds that the prosecutors presenting the
case to the grand jury did not have a duty to inform the grand jury of Ms. Doe‟s
claim and settlement because they were not actually aware of this evidence at
the time of the grand jury proceedings. The court finds no violation of Penal
Code § 939.71.

      19.    Substantial Prejudice Under Penal Code § 939.71

       Having found that the prosecution did not fail to inform the grand jury of
exculpatory evidence in accordance with Penal Code § 939.71, it is not necessary
for the court to determine whether defendant suffered any substantial prejudice.
(Penal Code § 939.71(a).)




                                                                               38
          C.        Constitutional Right to An Impartial and Independent
                    Grand Jury

       This section addresses the defendant‟s non-statutory motion to dismiss
based on claims that there is a Federal and State Constitutional duty upon the
prosecutor to disclose exculpatory evidence to the grand jury as well as a duty
on the part of the prosecutor to learn of exculpatory evidence in the possession
of members of the prosecution.

       At the time of this court‟s decision, there had been no reported decisions
addressing the prosecution‟s duty to inform the grand jury of exculpatory
evidence to the grand jury under the Due Process Clauses of the Federal or State
Constitutions. The exact focus of this case appears to be a matter of first
impression. Having reviewed the California and federal authorities, the court
finds that the ruling by United States Supreme Court in United States v. Williams
(1992) 504 U.S. 36, 51 [118 L. Ed. 2d 352, 112 S. Ct. 1735] is controlling and
the court finds defendant does not have any cognizable claim under the Federal
Constitution. The defendant does, however, have a right under the California
State Constitution to not be indicted in the absence of a determination of
probable cause by a grand jury acting independently and impartially.

                    1.        Federal Constitution

        Defendant‟s claim that the prosecutor has a federal constitutional duty to
disclose exculpatory evidence to the grand jury. The People contend that this
was flatly rejected by the United States Supreme court in United States v.
Williams (1992) 504 U.S. 36, 51, 112 S. Ct. 1735, 118 L. Ed. 2d 352 (Williams).15
In Williams, the Supreme Court stated that "requiring the prosecutor to present
exculpatory as well as inculpatory evidence would alter the grand jury's historical
role, transforming it from an accusatory to an adjudicatory body.” Thus, the
Supreme Court held that there is no duty on the part of the prosecutor to
present exculpatory evidence to the grand jury. Accordingly, the Supreme Court
held that a disclosure rule was not justified as an exercise of the court's
supervisory power. It also concluded the disclosure rule was not a necessary
means of assuring the constitutional principals under the Fifth Amendment which
provide for the judgment of an independent and informed grand jury. (Id., p. 51,
53.)




     15
        There the defendant was indicted for making materially false statements to banks. The prosecutor did not inform
the grand jury that the "materially false" statements were consistent with the defendant's other financial accounting, a
fact which the defendant contended constituted substantial exculpatory evidence. (Williams, 504 U.S. at p. 37.)


                                                                                                                    39
        Several California courts have referenced Williams and have each
concluded that under the United States Constitution a prosecutor has no duty to
present exculpatory evidence to a grand jury but that under the California
Constitution an indictees due process rights might be violated if the grand jury
proceedings are conducted in such a way as to compromise the grand jury‟s
ability to act independently and impartially. (People v. Thorbourn (2004) 121 Cal.
App. 4th 1083, 1088 [“Under the United States Constitution…a prosecutor has no
duty to present exculpatory evidence to a grand jury” but court recognized that
due process might be violated if the grand jury proceedings compromise the
grand jury‟s ability to act independently and impartially citing Mouchaourab,
Cumminsky and Backus]; Berardi, 149 Cal. App. 4th at p. 492, fnt. 9 [“The
United States Supreme Court has determined that a prosecutor has no duty
under the federal Constitution to disclose exculpatory evidence to a grand
jury…[t]hus the duty in California is derived from state law” referring to failure to
disclose exculpatory evidence that gives rise to a due process violation under the
state Constitution citing Thorbourn, 121 Cal. App. 4th at 1089]; Cummiskey, 3
Cal. 4th at p. 1033, fnt. 3 [“We note that the United States Supreme Court
recently held that a prosecutor seeking an indictment by federal grand jury has
no constitutional duty to disclose to the grand jury substantial exculpatory
evidence]; Mouchaourab, 78 Cal. App. 4th at p. 427 [“There is no federal
constitutional mandate regarding pretrial discovery of the records of grand jury
proceedings.”]

        Numerous other federal authorities have reached similar conclusions to
that in Williams. Federal cases relying on Williams have since rejected similar due
process claims under the Due Process Clause of the Fifth Amendment.16 The
court recognizes that while a decision of an intermediate federal appellate court,
is not binding authority on California courts, decisions of lower federal courts can
be persuasive. (Wagner v. Apex Marine Ship Management Corp. (2000) 83
Cal.App.4th 1444, 1451; People v. Figueroa (1992) 2 Cal. App. 4th 1584, 1587.)




  16
     United States v. Ransom (2000) 194 F.D.R. 692, 693 [no violation of Fifth Amendment Grand Jury and Due
process Clause per Williams]; United States v. Gross (1999) 41 F. Supp. 2d 1096, 1098 [same]; U.S. v. Stout (1992)
965 F. 2d 340, 343 [citing Williams to find no violation of due process where prosecutor failed to present exculpatory
evidence to the grand jury]; United States v. Waldon (2004) 363 F.3d 1103, 1108, 1109 [citing Williams to find no
violation of Fifth Amendment Grand Jury Clause when prosecution failed to present exculpatory to grand jury]; U.S. v.
Sears, Roebuck, Company (1983) 719 F. 2d 1386,1392, 1394 [rejecting claim that prosecutor had duty as part of due
process claim, and held failure to disclose exculpatory evidence to federal grand jury did not violate right to informed
and independent grand jury under Fifth Amendment Grand Jury Clause]; U.S. v. Adamo (1984) 742 F.2d 927, 937-938
[indictment valid under Firth Amendment and Fourteenth Amendment even though government failed to provide grand
jury with exculpatory evidence]; United States v. Kennedy (1977) 564 F.2d 1329, 1335 [appellant claimed
unsuccessfully that his Fifth amendment right to an indictment by an informed grand jury was abused by the
prosecutor's admitted refusal to submit to the grand jury exculpatory evidence proffered by the appellant's trial
attorney].


                                                                                                                    40
       The Supreme Court in Williams has reasserted that grand jury proceedings
are to strictly function as ex-parte investigatory proceedings to determine
whether there is probable cause to believe a violation of criminal law has
occurred and that the essential role of the grand jury is as an accusatory body.
(Williams, 504 U.S. at p.51.) The court acknowledges that Williams did not
decide the issue under a due process analysis but rather reversed on the ground
that there was no such supervisory power in the federal courts to require
presentation of exculpatory evidence, concluding that the disclosure rule used to
dismiss Williams‟ indictment exceeded the court‟s authority. (Williams, 504 U.S.
at p. 45, 47.)

        This notwithstanding, the court finds that the ruling in Williams forecloses
defendant‟s claim under the Federal Due Process Clause of the Fourteenth
Amendment. Defendant‟s claims under the Fourteenth Amendment must fail
because the reasoning relied upon by the defendant to assert a federal due
process right -- to have the prosecutor disclose exculpatory evidence to the
grand jury in order to preserve the protective role of the grand jury as well as to
ensure that the grand jury is both informed and independent -- was rejected by
the court in Williams, 504 U.S. at p.44, 51 [dismissing the argument that
appellate court‟s rule could be justified as a “Fifth Amendment „common law‟
[rule], a necessary means to assuring the constitutional right to the judgment of
an independent and informed grand jury…”]. In turn because the construction of
the Due Process Clause of the Fifth Amendment applies equally to the
comparable clause of the Fourteenth Amendment, applicable in state courts,
defendant‟s argument is unsuccessful here. (U.S. v. Agurs (1976) 427 U.S. 97,
107; 96 S. Ct. 2392; 49 L. Ed. 2d 342.)

      Even if the Fourteenth Amendment Due Process Clause were to apply, it
would not change any result the court has reached. For the reasons detailed
below the court finds there was a violation of defendant‟s rights to due process.

       2.     State Constitution

              (a)    Prosecutor’s Duty to Inform Grand Jury

       The court must now address the validity of the duty to disclose
exculpatory evidence to the grand jury under the California Constitution. The
California Constitution provides in article I, § 14 “Felonies shall be prosecuted as
provided by law, either indictment, or after examination and commitment by a
magistrate, by information.] In both article I, § 7 and § 15, the California
Constitution provides that a person may not "be deprived of life, liberty or
property without due process of law."




                                                                                  41
        California courts have held that a grand jury indictee's due process rights
under the Federal and State Constitution may be violated if the grand jury
proceedings are conducted in such a way as to compromise the grand jury's
ability to act independently and impartially. (Mouchaourab, 78 Cal.App.4th at p.
435, relying on Cummiskey, 3 Cal.4th at p. 1022, fn. 1 [improper instructions
given to grand jury]; Backus, 23 Cal.3d 360 [presentation of irrelevant and
incompetent evidence might violate due process, but was found harmless in that
case]; People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1089 [recognized
potential claim under due process for failure to bring exculpatory evidence but
court did not reach merits of the claim because defendant never argued it
affected grand jury‟s ability to act independently or impartially per Backus];
Berardi, 149 Cal. App. 4th at p. 492.)

        These cases emphasize that while grand jury proceedings are not a mini-
trial to determine guilt or innocence where the accused is given an opportunity
as of right to present his/her case, a prosecutor who manipulates the evidence in
such a fashion --be it an instructional error or inadmissible evidence -- destroys
the existence of an independent and informed jury in violation of due process.

       In Backus, 23 Cal. 3d at p. 392, two defendants contended the indictment
against them should be dismissed because the extent of the inadmissible
evidence before the grand jury was so great that the indictment was handed
down in violation of their right to due process of law. (Id. at pp. 391–392.) The
Supreme Court noted that neither it “nor the United States Supreme Court has
yet addressed the question of a defendant's right to due process during grand
jury proceedings … .” (Id. at p. 392.) The court in Backus, went on to conclude,
however, that a right to due process in grand jury proceedings does exist. The
majority in Backus quoted with approval the appellate decision in Johnson which
stated “any prosecutorial manipulation which substantially impairs the grand
jury‟s ability to reject charges which it may believe unfounded is an invasion of
the defendant‟s constitutional right [to due process of law]…and deprives “the
grand jury of independence and impartiality [in which case] the courts should
not hesitate to vindicate the demands of due process.” (Backus, 23 Cal. 3d at p.
392.)

       The court in Backus observed that the appellate decision in Johnson had
recognized that the Fifth Amendment guaranteed that the defendant could not
be held to answer in a federal prosecution for capital and otherwise infamous
crimes „unless on a presentment or indictment of a Grand Jury‟ presupposed a
grand jury acting independently of the prosecutor or judge, and that the function
of the federal grand jury „as a protective bulwark standing solidly between the
ordinary citizen and an overzealous prosecutor…” (citing United States v. Dionisio
(1973) 410 U.S. 1, 17 [93 S. Ct. 764, 35 L. Ed. 2d 67, 81,]), was equally that of
a state grand jury. (Backus, 23 Cal. 3d at p.393 citing Johnson, 15 Cal. 3d at p.


                                                                                 42
253–254.) In dictum, the Backus court reasoned that “[i]f the grand jury cannot
fulfill its obligation to act independently and to protect citizens from unfounded
obligations…when not advised of relevant exculpatory evidence, neither can it do
so if it is invited to indict on the basis of incompetent and irrelevant evidence”
under due process of law. (Backus, 23 Cal. 3d at p. 393.)

       In Mouchaourab, 78 Cal.App.4th at p. 424 the court concluded that
California law provides that a defendant has a due process right not to be
indicted in the absence of a determination of probable cause by a grand jury
acting independently and impartially in its protective role expressly cited Cal.
Const., art. I, § 14 along with Johnson, 15 Cal. 3d at p. 253; Backus, 23 Cal. 3d
at p. 393; and Cummiskey, 3 Cal. 4th at p. 1022, fn. 1. In Cumminskey, 3 Cal.
4th at p. 1039, the court stated that “a court may set aside an indictment on the
ground that the proceedings have failed to comport with the demands of the due
process clause of the federal or state Constitution” citing People v. Backus
(1979) 23 Cal.3d 360, 392-393.

        Defendant here argues that denying the grand jury access to exculpatory
evidence interfered with the grand jury‟s decision-making function, and dismissal
of the indictment is warranted under the State Constitution. While the United
State‟s Supreme Court in United States v. Williams (1992) 504 U.S. 36, 51, 112
S. Ct. 1735, 118 L. Ed. 2d 352 impliedly rejected that contention, this court does
not find the Supreme Court's decision in Williams to be dispositive of the case at
hand. Despite the Williams court's conclusion that it did not have the authority to
adopt the rule sought by the defendant in that case, California precedents make
clear that our courts may invoke its supervisory power to remedy perceived
injustices in grand jury proceedings. (Backus; Cumminsky; Mouchaourab.)

       In distinguishing Williams it should be pointed out that California‟s State
Constitution does not simply mirror its federal counterpart, but instead
constitutes a basis for independent rights and protections that are available and
applicable to the citizens of California. The state Constitution is a document of
independent force, and the rights defined therein are not mirror images of their
federal counterparts. (Art. I, sec. 24, Cal. Const. [Rights guaranteed by this
Constitution are not dependent on those guaranteed by the United States
Constitution]. Because the California Constitution is a document of independent
force and effect it may be interpreted in a manner more protective of
defendant‟s rights than that extended by the federal Constitution.17 (People v.
Fields (1996) 13 Cal. 4th 289, 298; People v. Monge (1997) 16 Cal. 4th 826, 844;

17
  In a variety of factual settings, the California Supreme Court has found that the State Constitution accords
protections that exceed those provided under the Federal Constitution: Wilson v. Superior Court (1975) 13 Cal.3d 652,
658 [state constitutional guarantee is "more definitive and inclusive than the First Amendment"]; People v. Hannon
(1977) 19 Cal.3d 588, 606-607 & fn. 8 [right to speedy trial guaranteed by article I, § 15 of the California Constitution
applies once a criminal complaint is filed; held court continued to adhere to that higher standard of protection against
the abuses of pretrial delay.


                                                                                                                      43
New Jersey v. Gaughran (1992) 260 N. J. 283, 288-289 [distinguished Williams
on state grounds; Hogan v. N.J. (1996) 144 N.J. 216, 236 [same].)

       California courts have interpreted its constitutional guarantee of due
process in light of federal precedent. To the extent this court is interpreting a
provision of the California Constitution that is similar to a provision of the federal
Constitution‟s Fourteenth Amendment Clause, the court is mindful that “cogent
reasons must exist before [it] will construe the Constitutions differently and
depart from the construction placed by the Supreme Court of the United States.”
(Raven v. Deukmejian (1990) 52 Cal. 3d 336, 353, quoting Gabrielli v.
Knickerbocker (1938) 12 Cal. 2d 85, 89; People v. Monge (1997) 16 Cal. 4th
826.)

       In a variety of factual settings, the California Supreme Court has found
that the State Constitution accords protections that exceed those provided under
the Federal Constitution: Wilson v. Superior Court (1975) 13 Cal.3d 652, 658
[state constitutional guarantee is "more definitive and inclusive than the First
Amendment"]; People v. Hannon (1977) 19 Cal.3d 588, 606-607 & fn. 8 [right to
speedy trial guaranteed by article I, § 15 of the California Constitution applies
once a criminal complaint is filed; held court continued to adhere to that higher
standard of protection against the abuses of pretrial delay.]

       Continuing this tradition and in order to assure the due process right to an
independent and fair grand jury system in the State of California, the court finds
that the California Constitution preserves the right not to be indicted in the
absence of a determination of probable cause by a grand jury acting
independently and impartially. The fulfillment of this protective role requires that
the grand jurors be informed18 by the prosecutor of exculpatory evidence that is
evidence that reasonably tends to negate guilt.

        The court does not find had the grand jury only known of Ms. Doe‟s claim
and monetary settlement that such evidence on its own would have been
sufficient to have raised doubts as to the veracity of Ms. Doe‟s testimony, which
the court finds provided compelling evidence sufficient to support a finding of
probable cause. The grand jury heard Ms. Doe‟s testimonial recounting of the
events that transpired on May 8, 2008 [GT31] when she met defendant at his car
to go to lunch and drove to his house in Martinez. [GT33, 34; GT Exh. 2 (photo
of defendant's townhouse).] Ms. Doe admitted she was willing to have sex with
him. [GT34.] Once at his home, the defendant took out a knife and started to


          18
             For the purpose of its due process analysis the court has imputed knowledge of Ms. Doe‟s claim and
settlement as well as her alleged claim she was abducted and raped by strangers to the prosecuting attorneys. This will
be addressed in detail below under a separate heading.




                                                                                                                     44
play with her sweater and tracing the sweater with the tip of the knife. [GT35,
GT Exh. 6 (photo of knives).]

        Ms. Doe took off some of her clothes [GT37] and the defendant turned
her around really quickly and shoved her on the bed. [GT37; GT Exh. 3, 4
(photo of bedroom).] All of a sudden he put his penis in her anus. [GT39.] She
repeatedly said "no” [GT39, 40] and she begged him to stop. [GT116.]
Defendant took out a small gun from the nightstand and put it to the base of her
skull. [GT42; GT Exh. 3 (photo of nightstand); GT Exh. 11 (photo of Walther
Pistol found in nightstand drawer).] Ms. Doe could recall the smell of feces when
she had turned around and there was some blood. [GT46.] The defendant took
her to the bathroom and put her in the shower. [GT47.]

       The defendant took her back to the bedroom and handcuffed her right
wrist to her right ankle. [GT47, 48; GT Exh. 8 (photo of hand gun found in
nightstand drawer).] He took ice and shoved it into her vagina and into her anus.
[GT50-51, 68; GT Exh. 7 (photo ice cube trays).] When “it was too full” he used
an old fashioned ice pick with the handle and started to shove it in. [GT51, 54,
67; GT Exh. 9 (photo ice pick).] He did this with both her vagina and her anus.
[GT51.] She was crying but not sobbing. [GT52.] The defendant then put his
penis in her anus so that all the ice would melt. [GT53.]

        After the ice and handcuffs were done, the defendant put her on her
knees and thrust his penis in her mouth causing her to gag and throw up fluids.
[GT56.] He had his hand on her head thrusting his penis into her mouth.
[GT57.] The defendant then put her on her back on the bed with her feet on the
floor. [GT57.] She begged him not to put anything else in her anus saying “not
my ass.” [GT57.] At that time there was vaginal penetration and then he flipped
her over so that her stomach was on the bed. [GT58.] The defendant began to
sodomize her again and then he ejaculated at some point. [GT58.] Ms. Doe
testified that she did not consent to being sodomized on the first occasion.
[GT44, 116.] She did not consent to the ice cubes and the handcuffs or the ice
pick. [GT116.] She did not give any indication that she was consenting to giving
him oral sex or the vaginal or anal sex. [GT116.]

       The court finds that Ms. Doe‟s testimony when considered in light of Ms.
Doe‟s claim and settlement would not without more have been sufficient for the
grand jury to reasonably have inferred that Ms. Doe was willing to fabricate the
report she was sexually assaulted. Any inconsistency in the reasons Ms. Doe
offered before the grand jury as to why she believed she was not hired (because
of the budget and her poor ranking) and the one she asserted in her claim (that
she was not hired in retaliation) would have been collateral to her testimony
that she had been sexually assaulted by the defendant. When considered in




                                                                                  45
isolation evidence Ms. Doe filed a claim against her employer and received a
monetary settlement would not reasonably have tended to negate guilt.

        However, such evidence would reasonably have tended to negate guilt
when considered in the context of the testimony of Ms. Leoni who suggested Ms.
Doe might have had an ulterior motive to report the allegations against her
employer. Ms. Leoni testified that Ms. Doe would “do anything to keep her job”
[GT531] and Ms. Leoni “did not think…that raising an allegation of sexual assault
would assist someone‟s career but the other side was that they could not get rid
of the person because of it.” [GT534.] The grand jurors could reasonably have
inferred that reporting such allegations would have prevented Ms. Doe‟s
employer from not hiring her and if they did not hire her she could allege it was
in retaliation for reporting the incident. This was indeed what Ms. Doe claimed in
her complaint to DEFH.

        Furthermore, Ms. Doe‟s claim and settlement was not all that was omitted
from consideration by the grand jury. The court finds that the claim and
settlement when coupled with Ms. Doe‟s alleged assertion she had been
abducted and raped by strangers, reasonably tends to negate guilt. The
prosecution only questioned Ms. Smith on whether Ms. Doe had told her she had
suffered a broken her jaw and lost an ovary – both statements Ms. Smith denied
having been said by Ms. Doe. [GT242.] Ms. Smith was never asked any
questions about whether Ms. Doe had asserted that the sexual assault in May
was a “stranger abduction.” Ms. Doe was never asked if she had in fact made
the statements attributed to her by Ms. Smith. Ms. Bravmann was never called
to testify during the grand jury proceedings. [Def. Mt. Exh. I, pp. 2-3.]

      The court finds that the grand jury should have been informed of what
Ms. Doe allegedly had said. The prosecutor failed to clarify the record having
been given an opportunity to do so at the evidentiary hearing before this court.
The court afforded the parties the opportunity to augment the record at the
evidentiary hearing, permitting counsel to question Ms. Doe on whether she told
Ms. Smith she was abducted and raped by strangers. At the evidentiary hearing
Ms. Doe was never questioned on this subject by the prosecution. Nor was Ms.
Smith called to testify on the subject of Ms. Doe‟s claim she was abducted by
strangers.

       As will be discussed in more detail below, the court finds that had the
prosecutors made reasonably inquiries they could have located Ms. Bravmann‟s
interview statements prior to the commencement of the grand jury proceedings.
[Def. Mt. Exh. I, pp. 2-3.] With knowledge of these statements, the prosecutor
could have asked Ms. Smith whether Ms. Doe had said she was abducted and
raped by strangers. The court finds, had Ms. Smith testified that Ms. Doe had
told her she had been abducted and raped by strangers, that this would have


                                                                                46
constituted evidence that reasonably tended to negate guilt. However, even had
Ms. Smith denied the alleged statement, the grand jury did not have to accept
Ms. Smith‟s testimony. The grand jury could have called Ms. Bravmann whose
testimony would have impeached Ms. Smith‟s. The court finds, when considered
in combination with Ms. Bravemann‟s statement to the contrary, that the grand
could reasonably have rejected Ms. Smith‟s denial.

       The grand jury could also have recalled Ms. Doe to question her on her
alleged statement she was abducted and raped by strangers thus providing the
grand jury with the opportunity to further investigate possible exculpatory
evidence which could reasonably have tended to negate guilt. Having failed to
inform the grand jury of Ms. Doe‟s alleged statement this avenue of investigation
was foreclosed to the grand jury. The court finds that even had Ms. Doe herself
denied the alleged statement attributed to her, that when considered in
combination with her complaint to DEFH and settlement, the grand could
reasonably have rejected her denial. They could reasonably have made a
credibility determination resolving the discrepancy in Ms. Doe assertions against
her.

       Accordingly, the court finds that the prosecution failed to comply as was
constitutionally required with its duty to inform the grand jury of Ms. Doe‟s
complaint to DEFH and settlement against the County of Contra Costa as well as
of her alleged claim she had been abducted and raped by strangers. This
evidence could reasonably have tended to negate guilt.

             (b)    Prosecutor Imputed With Knowledge of Exculpatory
                    Evidence Known to Members of the Prosecution
                    Team

      The issue presented before the court requires the court also to determine
what the prosecutors‟ duty is to inform him or herself of potentially exculpatory
evidence in fulfillment of the duty they owe to the grand jury. In particular, the
evidence of Ms. Doe‟s claim and settlement as well as her statement she was
abducted and raped by strangers is at issue herein.

       Defendant urges the court to find that the prosecutor has a constitutional
duty to “learn of exculpatory evidence in the possession of investigating
agencies.” This demands that knowledge of exculpatory evidence in the
possession of the investigative team be imputed to the individual prosecutor
even when that prosecutor has not actually learned of such evidence. Defendant
urges the court to define the prosecution team as including former District
Attorney Robert Kochly, former assistant District Attorney Brian Baker, Senior
Deputy District Attorney Paul Sequeira, as well as the police and investigators
that assisted the prosecution in preparing the case for the grand jury.


                                                                                47
        The People invite the court to draw a distinction between former District
Attorney Robert Kochly‟s role in the present case in terms of his local
administrative function as law officer of the County and his prosecutorial function
as public prosecutor for the State citing Pitts v. County of Kern (1998) 17 Cal.4th
340, 359 (Pitts); Nguyen v. Superior Court (1996) 49 Cal.App.4th 1781, 1787).
The People assert that any information relating to the filing of the claim and
settlement of Ms. Doe‟s claim against the County was restricted to the
“administrative investigation which was a third party to the criminal prosecution”
citing People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1319,
1315; EH 22-23, 25-26, 30-31, 38, 42, 49-50, 84-85, 91-92, 94-95, 103, 105,
113-115, 119-120 , 151-152.) As such, the People had no access to or duty to
seek information of the claim and present it to the grand jury.

       The court finds Pitts, 17 Cal.4th 340 is not decisive in determining
whether Mr. Kochly, Mr. Baker and Mr. Sequeira were members of the
prosecution team for the purpose of determining the prosecutor‟s duty to inform
the grand jury of exculpatory evidence. Pitts ruled that for the purpose of
determining the local government‟s damage liability under 42 United States Code
§ 1983 (liability for person acting under color of state law for depriving another
of constitutional rights), the district attorney acted on behalf of the state rather
than the county when preparing to prosecute; when prosecuting crimes; and
when establishing policy and training employees in these areas. (Pitts, 17 Cal.4th
at p. 356, 359.)19

         In the present case, there is no issue of civil liability or any civil claim
before the court against the former Contra Costa District Attorney, Robert
Kochly, or any of his employees. The court does not make any findings as to the
liability or immunity in connection to what if any discovery responsibilities were
held by the former Contra Costa District Attorney, or any of his employees.
Rather the court will limit its findings to whether Mr. Kochly, Mr. Baker and Mr.
Sequeira were members of the prosecution team as the term is defined under
Kyles v. Whitley (1995) 514 U.S. 419, 437-438, 115 S.Ct. 1555, 131 L.Ed.2d 490
(Kyles); In re Brown (1998) 17 Cal.4th 873, 879 (Brown); People v. Superior
Court (Barrett) (2000) 80 Cal.App.4th 1305, 1319, 1315.)

     19
        The California Supreme Court later clarified its holding in Pitts by explaining that a district attorney represents
the state, and is not considered a policymaker for the county, when prosecuting crimes and when preparing to prosecute
crimes, including investigating crimes in advance of prosecution. (Venegas v. County of Los Angeles (2004) 32 Cal.
4th 820, 832-33.) In the context of immunity from liability the Supreme Court has adopted a "functional approach,"
which analyzes the nature of the function performed, not the identity of the actor who performed it. (Buckley v.
Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613, 125 L. Ed. 2d 209 (1993); Forrester v. White, 484 U.S. 219,
229, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988).) Ultimately, prosecutorial immunity under § 1983 depends not on whose
duty it is to perform a certain function, but rather on whether the function performed is "intimately associated with the
judicial phase of the criminal process." (Imbler v. Pachtman (1976) 424 U.S. 409, 430, 96 S. Ct. 984, 47 L. Ed. 2d
128.)




                                                                                                                        48
       The court finds that Robert Kochly, the former District Attorney of Contra
Costa County was a member of the prosecution team for the purpose of
determining the scope of the prosecution's constitutional duty to inform the
grand jury of exculpatory information. Accordingly, as a member of the team,
Mr. Kochly‟s knowledge of Ms. Doe‟s claim and monetary settlement is imputed
to the individual prosecutors. Furthermore, the court finds that knowledge of Ms.
Doe‟s statement that she was abducted and raped by strangers was also known
to members of the prosecution team.

        In the context of a prosecution‟s disclosure duty, the courts have
consistently declined to draw a distinction between different agencies under the
same government focusing instead on determining the members of the
“prosecution team.” (Brown, 17 Cal.4th at p. 878.) Neither will the court draw
any such distinction in the case before it. The prosecution team includes persons
“acting on the government's behalf” (Kyles, 514 U.S. at p.437) and persons
“assisting in the prosecution‟s case” (Brown, 17 Cal.4th at p. 880). The
prosecutor therefore has a duty to search for and disclose exculpatory evidence
to the grand jury if the evidence is possessed by a person or agency that has
been used by the prosecutor or investigative agency to assist the prosecution or
the investigating agency in its work. (Barrett, 80 Cal.App.4th at p. 1315.) It does
not however have any such duty when such evidence or information is possessed
by a person or agency that has no connection to the investigation or prosecution
of the criminal charge against the defendant. (Barrett, 80 Cal.App.4th at p.
1315.) 20

        As the court so aptly observed in Brown "[a] contrary holding would
enable the prosecutor to avoid disclosure of evidence by the simple expedient of
leaving relevant evidence to repose in the hands of another agency while
utilizing his access to it in preparing his case for [the return of an indictment].”
(Brown, 17 Cal.4th at p. 879.) The court finds as the court did in Brown that
"whether the nondisclosure was a result of negligence or design, it is the
responsibility of the prosecutor. The prosecutor's office is an entity and as such it
is the spokesman for the Government.” (Brown, 17 Cal.4th at p. 879 citing Giglio


     20
        Barrett, 80 Cal.App.4th at 1315-1318 [information possessed by an agency that has no connection to the
investigation or prosecution of the charge is not possessed by the prosecution team; therefore the prosecutor's duty to
disclose information favorable to the defense does not extend to information the California Department of Corrections
possessed unrelated to the charges]; Barnett v. Superior Court (2010) 50 Cal. 4th 890, 904 [for post-trial purposes out-
of-state law enforcement agency that provided information to California prosecutors was not a member of prosecution
team because they were not under prosecutor‟s control, did not participate in a joint investigation or sharing resources,
and there was no ready access to the information]; In re Steele (2004) 32 Cal.4th 682, 696, 701 [prosecution case in
aggravation consisted entirely of crimes committed before defendant was in prison; prison officials did not investigate
or help prosecute any of these crimes; the prosecution had no obligation to provide information prison officials
possessed unrelated to the charge]; People v. Uribe (2008) 162 Cal. App. 4th 1457, 1479 [SART exam was
investigative, it was “spearheaded” by the police, who advised doctor of a report of alleged sexual abuse; major
purpose of the examination was to determine whether the allegation could be corroborated with physical findings.]


                                                                                                                       49
v. United States (1972) 405 U.S. 150, 154 [92 S. Ct. 763, 766, 31 L. Ed. 2d 104];
Kyles, 514 U.S. at p. 439.)

        The court finds that these principles apply with equal force to the
prosecution‟s duty in the grand jury context. Accordingly, the court concludes
that the scope of the prosecutor‟s duty to inform the grand jury extends beyond
the contents of the prosecutor's case file and encompasses the duty to ascertain
as well as divulge any exculpatory evidence that reasonably tends to negate guilt
that is known to the others assisting the government in the investigation and
prosecution of the case. (State v. Womack (1996) 145 N.J. 576, 589 [following
Kyles, at grand jury proceedings where evidence was clearly known to the
principal investigating agent but not known to the individual prosecutor; held
such information was properly considered to be within the knowledge of the
prosecutor who failed to inform the grand jury of such evidence]; Kudisch v.
Overbeck (1985) 618 F.Supp. 196, 201 [court approved of reasoning set forth by
dissent in Grand Jury v. Ciambrone (1978) 601 F. 2d 616, 628, that the
prosecutor before the grand jury cannot be insulated from the rest of the
prosecution team in so far as lead investigators were aware of exculpatory
evidence].)

        Any other rule would leave the defendant's due process rights to an
impartial and independent grand jury up to the other members of the
prosecution team, and not the prosecutor(s) whose exclusive duty it is to inform
the grand jury of exculpatory evidence. In this context, there can be no
substitutes for the prosecutor. A rule requiring the members of the prosecution
team to make separate disclosure decisions would create unnecessary confusion.
(Kyles, 514 U.S. at p. 421, 438 [prosecutor remains responsible regardless of any
failure by police to bring favorable evidence to the prosecutor‟s attention]; Giglio,
405 U.S. at p. 154 [duty extends to material possessed by another prosecutor in
the same office]. This approach is also consistent with past decisions which
demonstrate that the touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the proceedings, the impact of
prosecutorial misconduct on the grand jury's impartiality, not the culpability of
the prosecutor. (Smith v. Phillips (1982) 455 U.S. 209, 220.)

       The court further finds that this approach is not inconsistent with the
existing California precedents which establish that dismissal of an indictment is
warranted where the individual prosecutor knowingly mislead or misguided the
grand jury. None the California cases noted below have addressed the present
issue before the court. In People v. Becerra (2008) 165 Cal. App. 4th 1064,
1069, 1072 the court ruled that the prosecution was obligated to inform the
grand jury of the nature and existence of any known exculpatory evidence. In
that case however the defendant conceded that the prosecution had not known
the witness was lying at the grand jury proceedings. Likewise, in People v.



                                                                                  50
Coleman (1978) 84 Cal. App. 3d 1016, 1020, the court held that there was no
duty on the prosecutor to volunteer to the grand jury any possible defenses
when it was not known to district attorney prosecuting the case. In that case, a
San Quentin correctional staff had investigated the incident and indicated
defendant acted in self-defense. There was no argument as there is here that
those other government employees who participated at the prison investigation
were in any way members of the prosecution team. Therefore Coleman is not
decisive.

       Similarly, in Johnson, 15 Cal. 3d at p.255 and Page v. Superior Court
(1979) 90 Cal. App. 3d 959, 969, it was clear from the facts that the prosecutor
was aware and had actual knowledge of exculpatory evidence. In none of these
cases was the issue litigated as to whether or not the prosecutor has a duty to
learn of such evidence that is known to the others acting on the government's
behalf in the case, including the police and investigators. The same holds true
for a number of other cases in other states.21

        The court‟s ruling does not, in the opinion of the court, convert grand jury
proceedings into mini-trials. Nor does this convert the grand jury proceedings
into an adjudicatory hearing as opposed to an accusatory one anymore that it
transforms the prosecutor‟s responsibility to inform the grand jury of exculpatory
evidence into the same disclosure duty owed a defendant at trial. (Williams, 504
U.S. at p.51.) The prosecution still need only establish probable cause, and not
guilt beyond a reasonable doubt. An indictment still remains a formal accusation
of guilt.

       The court recognizes that the prosecutor is responsible for initiating and
preparing the criminal case which comes before the grand jury. The prosecutor is
present while the grand jury hears testimony; he or she calls and questions the
witnesses, and draws up the indictment. In addition the prosecutor has a duty to
inform the grand jury of exculpatory evidence that reasonably tends to negate
guilt and therefore learn of such evidence that is known to the others assisting
the government in the case. The court is satisfied that this will not impose an
inordinate burden on the prosecution given that there already exists procedures
and regulations established to carry out the prosecutor's burden to insure
communication of exculpatory information on each case is made to the grand
jury.

     21
        Sheriff v. Frank (1987) 103 Nev. 160 (cited with approval in Berardi, 149 Cal. App. 4th at p. 494) [prosecutor
was actually aware victim had previously recanted accusation but failed to disclose it to grand jury; held, prosecution's
omission of evidence and other misleading conduct “ „destroy[ed] the existence of an independent and informed grand
jury]; State v. Gaughran (1992) 260 N.J. Super. 283 (cited with approval in Berardi, 149 Cal. App. 4th at p. 494)
[objective medical evidence that alleged rape by defendant did not occur; held omission of exculpatory evidence may
create “grave … doubt that the Grand Jury's determination was made fairly and impartially”]; State v. Hogan (1996)
144 N.J. 216, 676 A.2d 533 [actual knowledge of prosecuting attorney required]; State v. Smith (1993) 269 N.J. Super.
86, 97 [prosecutor's obligation to present to the grand jury evidence in his possession that exculpates a defendant
included statements provided to prosecutor by defendant.]


                                                                                                                      51
         The rule prescribed by the court does not impose a duty on the
prosecutor to introduce all exculpatory evidence before the grand jury. The law
still requires no more than the prosecutor informing the grand jury of the nature
and existence of the exculpatory evidence. A rule requiring the calling of
witnesses to set out the exculpatory evidence “would . . . fetter the grand jury
with the incapacity to return an indictment until it has summoned all potential
witnesses designated by an accused or his counsel, whether they number five . .
. or five hundred. Such is not the law, and Johnson v. Superior Court did not so
hold.” (People v. McAlister, (1976) 54 Cal.App.3d 918, 926-927.) Once informed
of the exculpatory evidence, “the grand jury may pursue further inquiry into the
potential exculpatory evidence or not, as in its discretion seems proper.” (Id. at
p. 927.)

       In this regard the prosecutor at a grand jury may still exercise
considerable discretion in determining what should be presented to the Grand
Jury. "[S]o long as the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests
entirely in his discretion." (Bordenkircher v. Haye (1978) 434 U.S. 357, 364, [98
S.Ct. 663, 668] 54 L.Ed.2d 604, [611] (1978).) This notwithstanding, the
prosecutor‟s right to exercise some discretion and selectivity in the presentation
of the evidence to a grand jury does not entitle him or her to mislead it or
engage in fundamentally unfair tactics before it.

       The prosecutor's discretion therefore is circumscribed if it appears that the
prosecutor knowingly failed to present evidence negating guilt to the grand jury;
namely if such evidence is actually known to the prosecutor and, or known to the
others assisting the government in its case. Failure to comply with this duty
results in a violation of the due process under the State Constitution. Such a duty
preserves the protective role of the grand jury by ensuring that the indictment is
returned by an impartial and independent grand jury. For the purpose of due
process, a rule that would require the prosecutor to only inform the grand jury of
evidence he or she is personally aware of, does not reflect the reality of the
integral role other members of the prosecution‟s team play in the investigation
and preparation of the case for the grand jury.

        Finally, defendant‟s reliance on cases that dealt with a defendant‟s right
to disclosure at a preliminary hearing are distinguishable. At a preliminary
hearing the accused has the right personally to appear, to cross-examine
witnesses, to present exculpatory evidence, and to exclude illegally obtained
evidence. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 12, [92 L.
Ed. 2d 1, 106 S. Ct. 2735]; Jennings v. Superior Court (1967) 66 Cal. 2d 867,
871; People v. Duncan (2000) 78 Cal. App. 4th 765, 775; Nienhouse v. Superior


                                                                                 52
Court (1996) 42 Cal. App. 4th 83, 91; Stanton v. Superior Court (1987) 193
Cal.App.3d 265, 267, 269-272; Merrill v. Superior Court (1994) 27 Cal.App.4th
1586, 1593-1594 [citing Brady held that evidence, if relevant to negating
probable cause or establishing a defense, is required to be disclosed prior to the
preliminary hearing]. Such rights are not available to the accused in a grand jury
proceeding. It is for this reason that the court finds distinguishable the cases
relied upon by the defendant.

        With that understanding of the law, and based on the record before the
court, the court concludes that Robert Kochly, former District Attorney of Contra
County, was a member of the prosecution team. Robert Kochly testified at the
evidentiary hearing that he authorized himself to receive reports on both the
administrative and criminal investigation. [EH26.] He further authorized the use
of his staff and resources at the request of the attorney general to specifically
assist the Office of the Attorney General in the criminal investigation. [EH29.] Mr.
Robert Kochly expressly instructed Mr. Sequeira, his senior deputy district
attorney, that he wanted him on the interview team and part of the criminal
investigation. [GT714, 720, 727.]

       The Attorney General‟s Office requested and Mr. Kochly agreed, that they
could use members of the District Attorney‟s investigative staff at their direction.
[EH32-33, 36] Deputy District Attorney Bob Hole, Deputy District Attorney Paul
Sequeira, along with District Attorney Lieutenant of Investigators, Darryl Jackson,
Arnold Lui and Paul Mulligan, assisted the prosecution‟s criminal investigation.
[GT463-464; 714; 700-702, 713, 808-809, 819-820; EH66, 71, 76.] In fact, the
Attorney General‟s Office informed Mr. Kochly at one point that they lacked the
necessary investigative resources to continue and therefore Mr. Kochly
authorized that his staff remain involved in the investigation. [EH36.] At no point
in time did Mr. Kochly advise the deputy attorney general‟s that his staff and
resources would no longer be available to assist them. [EH33.]

        The court finds that a closely aligned working relationship developed
between Mr. Kochly, his staff and the Attorney General‟s office based on the
sharing of resources. The level to which Mr. Kochly assisted the Attorney General
in the criminal investigation is evidenced by the number of staff he instructed to
assist the prosecutors (deputy attorneys general). The assistance provided by
deputy district attorney Bob Hole, deputy district attorney Paul Sequeira, along
with district attorney investigators, Darryl Jackson, Arnold Lui and Paul Mulligan,
would not have been possible without Mr. Kochly having sanctioned it.




                                                                                 53
       Affirmatively authorizing that his staff work closely with the attorney
general constituted an over act expressly intended to assist the government in its
case against the defendant. For these reasons, the court finds that Robert Kochly
had a direct connection to the investigation of the criminal charge and provided
direct assistance to the prosecution in its case against the defendant. This case is
therefore distinguishable from cases where the information was possessed by
persons that had no such connection. (In re Steele (2004) 32 Cal.4th 682, 697.)

       The record further indicates that Mr. Kochly -- as a member of the
prosecutors‟ team -- had knowledge of Ms. Doe‟s claim and that she had filed a
notice of a right-to-sue prior to the commencement of the grand jury
proceedings. [EH20, 37-38.] On April 22, 2009, counsel for the DFHE notified Ms.
Doe‟s attorney that the complaint was closed effective April 21, 2009 because an
immediate right to sue notice was requested. Mr. Robert Kochly was aware of
this before October 2009, when the grand jury proceedings had commenced.
[EH20, 38-39, 169, 172; EH Exh. A, EH Exh. B.] Prior to and during the course
of the grand jury proceedings, Mr. Kochly did not report Ms. Doe‟s claim to the
deputies at the Attorney General‟s Office. [EH22, 23, 24, 50.]

        The court further finds that there is no evidence before the court upon
which to conclude that the information possessed by Mr. Kochly was not
reasonably accessible to the prosecuting attorneys. (In re Littlefield (1993) 5 Cal.
4th 122, 135; People v. Little (1997) 59 Cal. App. 4th 426, 429, 433.) There was
no evidence from Mr. Kochly that had he been asked by the prosecutors that he
would not have disclosed exculpatory evidence to them. Mr. Kochly testified that
he received a copy of Ms. Doe‟s claim from county counsel but there was no
evidence that he had been instructed not to share this information. [EH38.] Mr.
Kochly testified that he never told the prosecutors about Ms. Doe‟s claim and
notice of right-to-sue, but he never testified as to why he never told them or that
he would not have told them had they inquired as to whether he possessed any
exculpatory evidence. [EH22-23, 25-26.] The court notes that Mr. Sequeira
testified that had he had actual knowledge of the claim he would have notified
the deputy attorneys general [EH85], as would Mr. Baker have told them about
the settlement once it became public. [EH15.]

        While Mr. Kochly explained that the administrative side of the
investigation began at the same time as the criminal investigation, he never
testified that Ms. Doe‟s claim or written settlement of that claim formed part of
that administrative investigation. It was never asserted that Ms. Doe‟s claim and
notice of right-to-sue implicated any Lybarger issues. (EH 25-26; (Lybarger v.
City of Los Angeles (1985) 40 Cal.3d 822 (statements taken under compulsion).
Mr. Kochly only asserted that the matters discussed during the closed session of
the Board of Supervisors were confidential. [EH44-45.] He never, however,


                                                                                 54
testified that this extended to Ms. Doe‟s claim and notice of right-to-sue. Once
the Board of Supervisors approved the settlement it would have been illegal for
that information not to have been made public. [EH165.]

        There was evidence before the court that a mediation session had taken
place in September 2009 and the fact that parties had all signed a confidentiality
agreement. [EH142.] Prior to the mediation there was no meeting of minds as to
the appropriate amount to settle the matter.22 [EH157, 159, 164] According to
county counsel, Ms. Holmes, because this was prior to mediation, such
information would not have been governed by the mediation privilege.23 The
result of the mediation (the settlement with the County) could not be part of any
confidentiality agreement. [EH157; 165-166; EH Exh. D [April 8, 2009 letter from
Ms. Doe‟s attorney inviting County to participate in mediation before a lawsuit is
filed.]

       Accordingly the court finds that at the time the grand jury proceedings
had commenced the prosecutors were imputed with this knowledge -- that Ms.
Doe had filed a claim against her employer and had then filed a notice of right to
sue instead. Having had this information, the court finds that further reasonable
inquiry would have led the prosecutors to have ascertained that the Board of
Supervisors had approved the settlement amount of $450,000 on October 6,
2009 and that after ratification a written settlement was being drafted for that
amount. [EH148-150, 165-167; Def. Ev. Hearing Exhibit E.] 24 On the day the
settlement had been ratified, the grand jury was hearing Ms. Doe‟s testimony.
The written settlement was signed by Ms. Doe on October 13, 2009 [EH149-151]
and the written settlement itself was not confidential. [EH164.] The grand jury
returned the indictment on October 19, 2009. Even though the settlement was
not finalized by all parties until October 20, 2009, the court finds that the
information concerning Ms. Doe‟s claim, the ratification of the mediated amount
and that she had signed a settlement agreement was readily available to the
prosecutors in the present case during the course of the grand jury proceedings.




    22
         Mr. Kochly attended the mediation of the claim in September 2009 and became aware that the matter had been
submitted to the mediator to determine a settlement amount. [EH39, 41.] Mr. Baker testified that he was aware that the
mediator recommended a settlement of $450,000 [EH103, 153-154] and that he communicated this to Mr. Kochly.
[EH103.] Mr. Kochly did not inform anyone at the Attorney General‟s Office that there mediation had taken place and
an amount was recommended by the mediator. [EH42.]
      23
         Ev. Code 1119 [bars compulsion and discovery of anything said or written in the course of mediation if
compelled at a "non-criminal" proceeding]; Rinaker v. Sup. Crt (1998) 62 Cal. App. 4th 155, 161, 164 [mediation
privilege applies in juvenile proceedings because they are civil in nature, not criminal, but privilege must yield to
constitutional right to effective impeachment where there is sufficient offer of proof in a criminal case.]
   24
      Mr. Kochly was also present for a portion of the Board of Supervisors closed session on October 6, 2009. [EH44.]
There was no settlement until the matter was approved by the Board of Supervisors. [EH105, 140, 147.] The Board‟s
closed sessions normally took place at the Board‟s noon recess. [EH47.] At this meeting the Board recommended
ratifying the proposed settlement. [EH44; EH Exh. C.]




                                                                                                                   55
        Turning to the other members of the prosecution team, the court finds
that Mr. Sequeira was a member of the prosecution team based on the level of
assistance he provided that Attorney General. However the court does not find
that Mr. Sequeira was informed of Ms. Doe‟s claim and settlement prior to
testifying before the grand jury. During the time of the grand jury proceedings,
Mr. Kochly did not discuss Ms. Doe‟s claims against the District Attorney‟s Office
and demand for money with Mr. Sequeira. [EH49, 50.] Mr. Sequeira did not have
knowledge of Ms. Doe‟s claim and settlement at the time he testified. [EH79,
170.] County counsel never contacted Mr. Sequeira to discuss or investigate the
claim. [EH170.] Sometime prior to October 2010 [EH60, 82], he became aware
that Ms. Doe might potentially file a claim and that he might be named. [EH60,
72, 81.] Ms. Henderson, a deputy district attorney who had encouraged Ms. Doe
to seek legal counsel, never told Mr. Sequeira that Ms. Doe was going to make a
work place claim. [EH169-170.] Mr. Sequeira had learned that there had been a
claim filed because he had learned that a claim had been settled. [EH62.] He
was unaware that there had been a mediation. [EH63.] He was never contacted
by human resources or risk management concerning Ms. Doe‟s claim. [EH62.]

      Having found Mr. Kochly and Mr. Sequeira to be members of the
prosecution team the court does not find it necessary to determine whether or
not Mr. Baker was a member of the prosecution team.

       Finally, as to the issue of Ms. Doe‟s claim she had been abducted and
raped by strangers, the record indicates that neither of the prosecutors
responsible for presenting the case before the grand jury were reported to have
attended the interview of Ms. Bravmann when she reported this to law
enforcement. (Def. Mt. Exh. I, pp. 2-3.) Ms. Bravmann was interviewed by
Martinez Police Department Sgt., John Sylvia, District Attorney Investigator
Mulligan, Deputy District Attorney Paul Sequeira, and Special Agent with
Department of Justice, Ramirez-Doty. However, the court finds that the
investigators report of the interview was readily accessible and available to the
prosecutors, and had the prosecutors made reasonably inquiries they could have
located Ms. Bravmann‟s interview statements prior to the commencement of the
grand jury proceedings. The lead investigators were members of the prosecution
team and given their knowledge of Ms. Doe‟s statement, the court imputes such
knowledge to the prosecutors.




                                                                                56
                    (c)       Grounds For Dismissal of Indictment Under California
                              Constitutional Right to Due Process

       Having found that that prosecution had imputed knowledge of Ms. Doe‟s
claim and settlement, as well as her statement she had been abducted and
raped by strangers, and that such evidence reasonably tends to negate guilt, the
court next must determine the legal effect on the indictment. Finding that the
prosecutor has failed to inform the grand jury of evidence that reasonably tends
to negate guilt does not on its own warrant dismissal. As noted in Berardi, 149
Cal. App. 4th at p.492, “even if the failure the failure to disclose exculpatory
evidence may…rise to the level of a due process violation under the State
Constitution [citing Thorbourn, 121 Cal. App. 4th at p. 1089]…there is no per se
reversal rule broadly applicable to all constitutional error. (see People v. Pompa-
Ortiz (1980) 27 Cal.3d 519, 530; In re Wright (2005) 128 Cal.App.4th 663, 673–
674.)”25

        Adopting the terminology from Berardi, 149 Cal.App.4th at pp. 481, 494
as applied in the context of interpreting whether there has been a substantial
prejudice under the statute (Penal Code 939.71), the court here finds a violation
of due process under the California Constitution has occurred at the present
grand jury proceedings and that the indictment shall be dismissed only when the
record reflects a reasonable probability that a properly informed grand jury
would not have found probable cause to indict ie., whether the grand jury would
not have found a strong suspicion of guilt. Accordingly, under the court‟s due
process analysis a reasonable probability of a more favorable result exists when
there is such an equal balance of reasonable probabilities as to leave the court in
serious doubt as to whether a properly informed grand jury would have declined
to find probable cause to indict had it known of the omitted evidence. (Berardi,
149 Cal.App.4th at p. 495.)

        The court has evaluated the record as a whole, taking into consideration
all relevant evidence, including the strength and nature of both the undisclosed
exculpatory evidence and the evidence supporting the probable cause finding
necessary to indict. (Berardi, 149 Cal.App.4th at 481, 494.) Probable cause may
exist although there may be some room for doubt. (Garcia v. Superior Court
(2009) 177 Cal.App.4th 803, 818; Berardi, 149 Cal.App.4th at p. 490). In the
present case the court finds itself left with serious doubt as to whether a

25
   In re Lance W. (1985). 3d 873, 879 the court held that in search and seizure cases governed by Cal. Const., art. I, §
28 (d), arising out of facts occurring after the passage of Proposition 8, California decisional law which would exclude
relevant evidence under the state Constitution is inapplicable; only that evidence which was illegally obtained under
federal constitution Fourth Amendment standards must now be suppressed in California courts. The California
Supreme Court expressly declined to decide whether Proposition 8 also applied to other constitutional violations. (37
Cal. 3d at 885 n.4.) Therefore, the issue before this court, the government's failure to inform the grand jury of
exculpatory evidence is not controlled by Lance W.


                                                                                                                      57
properly informed grand jury would have found probable cause to indict had it
known of Ms. Doe‟s claim and settlement as well as her claim she was abducted
and raped by strangers.

       The court finds that had the grand jury known of Ms. Doe‟s claim and
settlement in combination with her claim she had been abducted and raped by
strangers they could have inferred Ms. Doe was willing to fabricate the
allegations that she was raped by the defendant. Had she identified a stranger as
responsible for the rape, then it was reasonable to infer that she could have
fabricated both the allegations in her complaint against her employer as well as
her testimony before the grand jury as to the criminal allegations. Such
evidence could have critically impeached her credibility on the material issue of
whether she consented or not to the sexual encounter with the defendant.

       In the face of this evidence, the grand jury could reasonably have inferred
from the record that she was financially motivated in making the allegations
against her employer. Ms. Doe, at the time she reported the allegations was
concerned not only with the negative impact the reporting might have on her
personally [GT64-65, 80-81, 183, 187, 835-836] but also on her job prospects.
[GT914-915.] Ms. Doe knew she was facing potential unemployment. Ms. Doe‟s
communications to Ms. Weiss on or about July 21, 2008 indicate that Ms. Doe
was worried she was not going to get hired and was “going to end up with [no]
job in 3 months – waiting tables….” [GT831; GJ Exh. 35.] A month later, on or
about August 18, 2008 Ms. Doe found out she had ranked seven out of eight.
Another month later on or about September 17, 2008 Ms. Doe learned that she
had a low test score and still ranked at the bottom of the candidates. [GT834-
835; GT Exh. 35.] Ms. Doe expressed to Ms. Weiss that she was “scared and
bummed out.” [GT Exh. 35.]

        The grand jury also heard evidence that Ms. Doe was aware at the time
she reported the incident that she could suffer retaliation. Ms. Doe testified that
by reporting the incident she was risking her career [GT80-81], a concern that
was echoed in the testimony of Ms. Mantel-Stransky who testified that Ms. Doe
had feared that reporting the sexual assault to her employer might cost her her
job. [GT183, 187.] Ms. McLaughlin‟s testimony indicated Ms. Doe was afraid of
what would happen if she told the office. [GT402.] Similarly, Ms. Weiss testified
that Ms. Doe feared she would not get hired if she reported it. [GT835-836.] The
grand jury, knowing that Ms. Doe feared possible retaliation, also heard Ms.
Leoni‟s testimony which went further to suggest Ms. Doe might have had an
ulterior motive to report the allegations against her employer. Her testimony
captured this sentiment aptly when she testified that Ms. Doe would “do
anything to keep her job” [GT531] and Ms. Leoni “did not think though that
raising an allegation of sexual assault would assist someone‟s career but the
other side was that they could not get rid of the person because of it.” [GT534.]


                                                                                 58
       The court acknowledges that Ms. Doe‟s testimony at the evidentiary
hearing indicated that her reason for filing the claim was because she thought it
was the “right thing to do” in light of the way the County had handled things
after she reported the rape. [EH 214.] She had been reluctant to file the claim
because she was not interested in money and expected the defense to use it.
[EH 220, 224.] Ms. Doe did “not want anyone to think it‟s about the money
because it‟s not.” [EH 225.] Ms. Henderson, Ms. Doe friend and former coworker
echoed these same sentiments on behalf of Ms. Doe at the evidentiary hearing.
[EH132, 34-135.] Yet despite these assertions the record also indicates that the
Board of Supervisors ratified the settlement proposed on behalf of Ms. Doe in the
amount of $450,000 and Ms. Doe conceded that she did indeed receive $280,000
after attorney fees. [EH239.]

        In the face of this evidence, along with the omitted evidence of her claim
and settlement, the grand jury could reasonably have construed the evidence
before it as indicative of Ms. Doe‟s financial motivation in making the allegations
of sexual assault in her claim against her employer and that she was motivated
to testify before the grand jury in conformity with that allegation. It should be
noted that at the time Ms. Doe testified at the grand jury she was aware that the
proposed monetary settlement had not yet been ratified by the Board of
Supervisors. [EH229.]

       The court further finds that had the grand jury also been informed Ms.
Doe had said she was abducted and raped by strangers, only to later assert that
the defendant had sexually assaulted her, and that this later formed the basis for
a monetary settlement for which she received $280,000, that there was a
reasonable probability the grand jury would have had serious doubts about the
veracity of Ms. Doe‟s testimony.

       The court further finds that an inconsistency as to who Ms. Doe identified
as the perpetrator of the rape could not reasonably have been attributed by the
grand jury to be as a consequence of her suffering from rape trauma syndrome.
The grand jury was informed through the evidence of Ms. Marsha Blackstone
about what generally happens in her experience with rape trauma victims.
[GT623.] The court finds there is no evidence that attributing the sexual assault
to another perpetrator (here a stranger abduction) comes within Ms. Blackstone‟s
description of what generally happens in her experience with rape trauma
victims. [GT619-621.] While there may be inconsistencies in the sequence and
time frame for the event, there was no evidence that this syndrome could
explain a victim‟s identification of another perpetrator as being responsible for
the sexual assault. Accordingly the court finds that an inconsistency as to who
Ms. Doe identified as the perpetrator could not have been attributed to be as a
consequence of her suffering from rape trauma syndrome.


                                                                                 59
       Furthermore, evidence that Ms. Doe had allegedly claimed to have been
abducted and raped by strangers could reasonably have cast a different light
upon the various inconsistencies in Ms. Doe‟s statements which included those
she attributed to the defendant which he allegedly made during the course of the
sexual assault,26 and those made long after the incident;27 and inconsistencies in
Ms. Doe‟s recounting of the order of the events on May 8, 2008 which she made
in her statements to law enforcement on September 26, 2008 [GJ Exh. 22 (disc)
played for grand jury; GT845-847, GT Exh. 23 (transcript); GT854-853] and GT
Exh. 30].28

       Ms. Doe‟s claim that she had been abducted and raped by strangers could
have cast further doubt as to Ms. Doe‟s claim that she was bleeding and had
fecal matter on her legs after defendant had sexually assaulted her, which was
not corroborated by forensic evidence. The grand jury were informed that
forensics determined that there were stains on the defendant‟s mattress pad but
the biological evidence did not indicate Ms. Doe‟s profile was in the sample.
[GT861-862.] This contradicted Ms. Doe‟s claims that she was bleeding and had
fecal matter on her legs. It may be inferred that if this had been the case these
fluids would have had contact with the sheets and possibly the mattress.




      26
         Ms. Doe testified that the defendant said to her “what did you think was going to happen” [41] and “I‟m not
your boyfriend” [GT52.] By contrast, Ms. Doe told Ms. Mantel that the defendant said something to her to the effect
that Ms. Doe “liked it rough” and that she “liked to be threatened”. [GT185.] Similarly, Ms. Doe told Ms. Smith that
while defendant held the gun to her head he said he could kill her and finish coming before her body was cold and
dump the body in the reservoir. [GT239.] Likewise, Ms. Doe told Ms. Climer that defendant said when he put the gun
to her head and said if she didn‟t hold still he would shoot her in the head and fuck the hole. [GT142, 148.] Ms. Doe
told Jon McSweeney that the assailant had said “you‟re lucky I don‟t make you lick the shit off my dick.” [GT589-
590.] Yet during her testimony Ms. Doe could not recall if defendant had said anything at the time he held the gun to
her head [GT52] except something to the effect that she should have expected this to happen.
      27
         Ms. Doe gave inconsistent reports about what defendant had said to her when he left a message on her machine.
Ms. Doe testified that when the defendant called her on May 30th, in response to her texting him earlier that she was not
into forced sodomy [GT828-829; GT Exh. 35], he had left a message on her machine that “I’m not into that either” and
that he wanted her to call him. [GT93.] Yet Ms. Doe had told Ms. Weiss that defendant had left a message apologizing
for hurting her and causing her distress. [GT282-284; 401; 828-829; GT Exh. 35.] In Ms. Doe‟s November 5, 2008
statement she thought defendant had texted her after she texted him about not being into forced sodomy, something to
the effect that “you should have said banana” or “I thought you would‟ve said banana.” [GT Exh. 30, p. 76-77.] Ms.
Doe makes no mention in her testimony of these statements allegedly made by the defendant. The inconsistencies are
apparent.
      28
         In her interview on September 26 interview Ms. Doe states that Mr. Gressett reached into her nightstand and
pulled out a gun while engaging in anal intercourse. [GT Exh. 23, p. 21-22.] He pointed the gun at the back of her
neck while continuing to assault her. He then later brought out an ice pick from the same drawer. [GT Exh. 23, p.23.]
But in her November 5th statement Ms. Doe claims that the ice pick was the first weapon brought out from the drawer
and used against her head. [GT Exh. 30, p.57-58.]
In the September 26 interview Ms. Doe stated she was handcuffed first (Id., p. 23-25) and later placed her in the
shower. (Id., p. 32.) In the November 5th statement they showered and afterwards she was handcuffed. [GT Exh. 30,
Id., p. 67-68.] In the September 26 interview Ms. Doe says the defendant ejaculated on her face. (Exhibit 23, p. 36)
while in her November 5th statement she said he ejaculated on her back. (GT Exh. 30, p. 74.)


                                                                                                                     60
       The court finds that had the grand jury been informed that she had also
claimed to have been abducted and raped by strangers that there was no
reasonable probability that the grand jury would have resolved the evidence in
favor of Ms. Doe given that her actions after the assault raised doubt as to the
veracity of her claim that she was in fragile physical condition after the sexual
assault, and that she had not consented to the forcible sexual encounter. There
were inconsistencies in Ms. Doe‟s reporting of her physical condition after the
alleged sexual assault which was presented for the grand jury.29 In fact, Ms.
Doe testified that shortly after the sexual assault Ms. Doe texted the defendant a
pop-up picture of a girl being “T-bagged” which meant that the man‟s testicles
are dropped in the woman‟s face. [GT76.] Ms. Doe continued to have
communications with the defendant the week after the incident.30 In light of Ms.
Doe‟s claim she was abducted and raped by strangers, the court finds that these
exchanges case doubt on Ms. Doe‟s credibility on the issue of whether or not she
consented to the sexual encounter.

       This conclusion is further reinforced given the general inconsistencies
brought to the grand juries attention in terms of Ms. Doe‟s medical condition.
[GT135.] The record indicates that she had a medical problem with her bladder
for which there is no determinative cause. [GT110-113; 115; 135.] The medical
records introduced as Exhibit 31 showed that the antibiotic Ciprofloxacin was
dispensed to Ms. Doe on June 5, 2008. The medical records also informed the
grand jury that a urinalysis was performed, the results of which came back
negative for any signs of infection. [GT Exh. 31, p.3, 4.] This is inconsistent
with Ms. Doe‟s claims that she had a bladder infection. [GT 237; 296; 425-428.]

         The records clearly indicate that there was no determinative cause
identified for Ms. Doe‟s condition at the time of she testified before the grand
jury. [GT135.] There was no medical opinion to support Ms. Doe‟s claim that she
has to take certain pills because of what she alleges the defendant did to her.
[GT115, 297.] The grand jury also heard evidence that Ms. Doe at one time
thought her ovaries were damaged. Yet again there was no medical evidence of
this. [GT92; 237, 242; 397; 428.] She was told at the hospital that she did not
think she could have children. [GT397.] The medical records revealed no
evidence of any damage to Ms. Doe‟s ovaries. (GT Exh. 31; GT Exh. 32.)




     29
         Ms. Doe described herself to Ms. Smith that she felt like a car wreck referring to the pain she was in after the
alleged rape. [GT239.] On May 8th, she told her friend Ms. Mantell that she was bleeding, had loose stool and was in a
lot of pain. [GT181.] Her sister, Ms. Climer observed that it was painful for Ms. Doe to sit and she walked slower.
[GT149.] Yet Mr. Pate, a District Attorney investigator who saw her shortly after she got back to work and he observed
no signs of limping or bruising. [GT224.] Nor did Mr. Sequeira on or about May 20 th. [GT706.]
      30
         They exchanged texts numerous times between the evening of May 8, 2008 the afternoon of May 10. (GT Exh.
33, AT & T records.)


                                                                                                                      61
       The court finds that there is a reasonable probability had the grand jury
been informed that Ms. Doe had said she was abducted and raped by strangers
combined with the inconsistencies in her physical and medical condition that
such evidence could have been contributed to further undermining her credibility
on the material issue of whether or not she consented to the sexual encounter
with the defendant. This conclusion holds true for other evidence before the
grand jury which indicated Ms. Doe did not dislike rough sex31; Ms. Doe
permitted defendant to squeeze her neck on a prior date32; Ms. Doe approved of
using a gun during sex and defendant was aware of this33; Ms. Doe wanted to
have sex with the defendant34; and Ms. Doe had a safe word.35

        The court recognizes that there was admissible evidence of defendant‟s
motive, intent and preparation before the grand jury as discussed already.
However, for the purpose of its due process analysis when the inadmissible bad
character evidence, the improper opinion evidence expressed by Mr. McKenna as
well as Ms. Weiss‟s impermissible opinion as to defendant‟s consciousness of
guilt36 is combined with the omitted evidence, the court finds that it was
unreasonable to expect the grand jury to have limited its consideration to the


      31
         There was evidence before the grand jury that could have supported an inference that Ms. Doe liked “rough sex”
and that the defendant was aware of this. Ms. Doe told Ms. McKosker that she liked someone who was strong, who
would be able to snap her neck but choose not to. [GT655.] Ms. Doe told the police on November 5, 2008 that she was
a “little bit” into rough sex. [GT Exh. 30, p. 70.) The record indicates that during the sexual assault defendant said to
Ms. Doe something to the effect that “oh, you like it. You like it this way. You know you like it rough…stop telling me
no…you know you like to be threatened.” [GT185.]
      32
         Ms. Doe had told Ms. Weiss that she had previously slept with the defendant and he had been “rough with her
and had choked her”. [GT280.] Ms. Doe described that when defendant put his hand around her neck and squeezed that
she found it was bordering on the unpleasant. [GT30.] There was no evidence Ms. Doe communicated this to the
defendant or told him to stop when he did this.
      33
         Defendant knew that Ms. Doe wanted to sleep with him, and that she liked sex with weapons. [GT655]. Ms.
Doe had indicated that she liked involvement of weapons during sex. [GT646.] Ms. Doe said “yeah, that‟s cool” in
response to Ms. Tavenier‟s remark that Ms.Tavenier liked to have sex with cops using weapons. [GT106.] There was
some evidence from which to infer that the defendant could have overheard Ms. Doe‟s remark. Ms. Doe testified that
the defendant was present at the table in the bar when she made the comment, although she could not say whether he
heard the conversation. [GT105.]
      34
         Ms. Travanier, Ms. Zelis and Ms. McKosker all testified that Ms. Doe had told them she wanted to have sex
with the defendant. [GT450, 555, 654-644.]
      35
         While Ms. Doe denied that she and defendant had ever discussed a “safe word” [GT103], Ms. Tavenier testified
that Ms. Doe told her her safe word of choice was “Banana.” [GT453.] In Ms. Doe‟s November 5, 2008 statement she
thought that after she had texted defendant about not “being into forced sodomy”, that he had texted her something to
the effect that “you should have said banana” or “I thought you would‟ve said banana.” (GT Exh. 30, p. 76-77.)
      36
         On May 30, 2008 Ms. Weiss and Ms. Doe again exchanged texts. Ms. Doe texted her telling her had the
defendant had called her the night before and left a message “saying how sorry he was and asking [her] to call him.”
[GT828-829; GT Exh. 35.] Defendant had said he was sorry “for hurting [her] and causing [her] distress…”. [GT828-
829; GT Exh. 35.] Ms. Doe texted Ms. Weiss explaining that the reason defendant had responded this way was because
earlier that evening Ms. Doe had answered defendant‟s text when he had asked if they were at odds, by texting him
“that I don‟t do forced sodomy and that [she] had bled for days.” [GT93; 828-829; GT Exh. 35.] Ms. McLaughlin also
testified that Ms. Doe had told her defendant had left a message saying he was sorry that things had got so out of hand
and the didn’t mean for them to get so out of hand.” [GT401.] At some point after the sexual assault, defendant texted
Ms. Doe saying that he had a gift that would make her “lips tingle”, and that it was lipstick and she responded that the
last gift ended up with her in the ER or that the last gift he gave her really hurt her. [GT94.]




                                                                                                                     62
admissible and relevant evidence. Therefore defendant has been denied due
process. (Backus, 23 Cal. 3d. at p.393.)

        Here the court finds that there is such an equal balance of reasonable
probabilities as to leave the court in serious doubt as to whether a properly
informed grand jury would have declined to find probable cause to indict had it
known of Ms. Doe‟s claim and settlement as well as her alleged claim she was
abducted and raped by strangers evidence. (Berardi, 149 Cal. App. 4th at p. 495.)
Having evaluated the record as a whole, taking into consideration all relevant
factors, including the strength and nature of both the undisclosed exculpatory
evidence and the probable cause evidence that was presented, it may be
concluded that had the grand jury had knowledge of the omitted evidence there
is a reasonable probability they would not have returned an indictment.

      D.     Due Process Violation Where Indictment Was Obtained by
             Knowing Use of Misleading Evidence

        Defendant contends that the prosecution obtained the indictment by
knowingly using false testimony and perjured testimony of Ms. Doe and Mr.
Sequeira. He argues because the prosecution knew of Ms. Doe‟s claims, and the
settlement, which contradicted both Ms. Doe‟s and Mr. Sequeira‟s testimony, that
the prosecution in failing to correct their misrepresentations knowingly relied on
the falsehoods to obtain an indictment. This violated defendant‟s right to due
process under federal and state constitutions. For the reasons that follow, the
court finds there is no merit to this claim.

       The court finds that the right to due process under the State Constitution
imposes not only a duty on the prosecutor to inform the grand jury of
exculpatory evidence but also imposes a concomitant duty on the individual
prosecutor to correct the testimony of his or her own witnesses when the
prosecutor knows or should have known it to be false or misleading. The rule
applies even if the false or misleading testimony goes only to witness credibility.
(United States v. Agurs (1976) 427 U.S. 97, 103-104 [49 L.Ed.2d at pp. 349-
350]; Napue v. Illinois (1959) 360 U.S. 264, 269 [3 L.Ed.2d 1217, 79 S.Ct.
1173); Giglio, 405 U.S. at pp. 153-154 [information known to prior prosecutor];
United States v. Bagley 473 U.S. 667, 670-672 [87 L.Ed.2d 481, 486-488] & fn. 4
[information known to federal investigators]; In re Jackson (1992) 3 Cal.4th
578, 595, 597 [disapproved on other grounds in In re Sassounian (1995) 9
Cal.4th 535, 545, fn. 6 [information known the investigating officers]; People v.
Morrison (2004) 34 Cal. 4th 698, 717 [a duty exists even if the false evidence
was not intentionally submitted]; People v. Seaton (2001) 26 Cal.4th 598, 647;
Becerra, 165 Cal. App. 4th at p.1072.)




                                                                                 63
       Accordingly to prevail on a claim that the prosecution obtained the
indictment through the knowing use of false testimony, defendant must prove
that: (1) the testimony was actually false or misleading, (2) the prosecution
knew or should have known that the testimony was false or misleading; and (3)
the false or misleading testimony was material.

      1.     Jane Doe’s Testimony

       Having concluded that the prosecutors can be imputed with knowledge of
Ms. Doe‟s claim and written settlement, the court does not find, however, that
Ms. Doe‟s testimony was misleading or false. The court does not find there is any
evidence Ms. Doe gave any false or misleading testimony before the grand jury.
Although the defense has demonstrated inconsistencies in Ms. Doe‟s testimony,
inconsistency is not tantamount to perjury absent a showing of knowing
falsehood on her part. There was no evidence that she was ever told the
reason(s) for why she was not hired. [EH196.] In the absence of knowing the
reasons, those she testified to before the grand jury rested on her own belief
and conjecture. (Daniels v. Odeldenburg (1950) 100 Cal. App. 2d 724, 727.)

       Before the grand jury, the prosecutor asked Ms. Doe “[i]f you know, why
were you not hired at the end of the three-year contract period.” [136.] She then
explained that it was “[t]he budget” and because she did not rank “in the top
two or three” of the candidates. [GT136.] Similarly, when she testified at the
evidentiary hearing before this court she stated that her belief for why she was
not hired was a combination of budgetary reasons and the fact that she ranked
seven out of eight candidates. [EH196, 200.] She explained that she believed the
way she was ranked was in part influenced by what had happened, a reference
to the fact she had reported being raped by a colleague. Ms. Doe was never
asked by the prosecutor why she was ranked the way she was, and was only
asked why she was not hired. [EH201.]

        In keeping with this, Ms. Doe in her complaint of discrimination filed on
April 12, 2009 “state[d] what [she] believe[d] to be the reason[s] for
discrimination.” [EH Exh. A.] Under penalty of perjury she swore in part that she
believed she was not hired in retaliation as one of the reasons she believed she
was discriminated against. This she swore to believe to be “true and correct of
her own knowledge” [EH Exh. A.] The court finds there is no evidence that Ms.
Doe herself knew the reasons why she was not hired. [EH196.] Rather she
testified before the grand jury as to her beliefs as evidenced by the various
reasons she gave in response to the question before the grand jury; those she
gave before the court at the evidentiary hearing; and those she set out in her
claim against her employer.




                                                                               64
        The basic premise underlying the prosecution‟s duty to correct false or
misleading testimony necessitates that there be a factual basis for finding that
false testimony was given. The court finds that there was no evidence that the
reason Ms. Doe testified to - that she was not hired because of the budget and
her poor ranking - were false or misleading. (People v. Morrison (2004) 34
Cal.4th 698, 716-717.) In fact, Mr. Sequeira explained that these were the very
reasons why candidates were either hired or not. [GT710-711.] He had heard
that her supervisors had some issue with her and that in November she ranked
lower among her peer group. [GT725.] Mr. Kensok who was Ms. Doe‟s
supervisor in misdemeanor trials, found she performed poorly compared to
others in terms of trial outcomes, overall readiness, recitation, reliability, court
interactions, and not as competent as her competitors. [GT794.] Finally, Ms. Doe
and Ms. Weiss exchanged text messages indicating that Ms. Doe had ranked 7
out of 8 candidates and that her test scores were not as competitive. [GT834-
835; GT Exh. 35.] Without evidence as to the false or misleading nature of Ms.
Doe‟s grand jury testimony the court cannot conclude that the reasons Ms. Doe
testified to were false or misleading.

       Nor was there any evidence that the reason Ms. Doe did not mention --
that she believed she was not hired in retaliation -- was in fact the reason she
was not hired. The record indicates that Mr. Kochly and Mr. Baker were identified
as responsible for determining who was hired at the District Attorney‟s Office.
Neither of these persons testified before the grand jury. At the evidentiary
hearing there was no evidence that the reason Ms. Doe was not hired was
because she reported the sexual assault. Similarly, in the settlement, the County
does not acknowledge that the reason set forth in Ms. Doe‟s claim was why Ms.
Doe was not hired.

       Accordingly the court finds in the absence of a factual basis for
determining the reason Ms. Doe was not hired, there is no evidence that the
reasons Ms. Doe offered before the grand jury for why she was not hired -- that
she was not hired because of the budget and her poor standing -- were false or
misleading. Therefore, there was no false or misleading testimony that needed to
be corrected. Having made this finding, the court does not find it necessary to
determine whether the materiality of the alleged misleading or false testimony.37




37
     Materiality is determined based on whether there was any reasonable likelihood that the alleged false or misleading
testimony could have affected the judgment of the grand jury. (Agurs, 427 U.S. at 103; Giglio v. 405 U.S. at pp. 153-
154 quoting Napue v. Illinois (1959) 360 U.S. 264, 271; In re Jackson, 3 Cal.4th at p. 598, fnt. 10 [disapproved on
other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)


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       2.     Mr. Sequeira’s Testimony

        Defendant contends that in light of Ms. Doe‟s claims and monetary
settlement that Mr. Sequeira‟s testimony was perjured and, or seriously
misleading. The court finds that there is no evidence Mr. Sequeira provided any
false or false testimony to the grand jury. Defendant contends that Mr. Sequeira
testified that “Ms. Doe never sought to link her allegations of sexual assault with
the District Attorney‟s decision whether or not to hire her.” Technically, this is a
mischaracterization of Mr. Sequeira‟s testimony.

       Mr. Sequeira did not testify that Ms. Doe “never” sought to link her
allegations to her hiring status, but rather his testimony was limited as to what
his observations were “at the time” Ms. Doe reported the allegations. Mr.
Sequeira testified to what he believed was operating on Ms. Doe‟s mind at the
time she initially reported the incident between May, 2008 and November 2008.

       The prosecution‟s question asked Mr. Sequeira whether Ms. Doe “in her
concerns or even through [his] perception [sought] to have some protection of
her employment status” through the reporting of the incident. [GT711.] Mr.
Sequeira‟s answers were literally true. Mr. Sequeira conditioned his response by
saying “at the time” he thought it was remarkable that she never mentioned her
hiring status. The court finds that it may be inferred from the record that the
time he is referring to is during the initial reporting period between May and
September 2009. At this time, Ms. Doe “never said it overtly” [GT711]; “never
said anything about her hiring status or gave [him] the feeling that anything was
connected between the event and her hiring” [GT711-712]; “she never talked
about it even” [GT711]; “she never mentioned…‟I‟m to be hired…throw any
signals or clues…she was thinking about that…” [GT711]; “she never talked
about” her hiring status [GT712]; and he did not “recall her ever mentioning”
that she was coming up for hire. [GT712.]

       The court has already concluded as discussed above that there is no
evidence that Mr. Sequeira knew at the time he testified that Ms. Doe had filed a
claim against the District Attorney‟s Office in April 2009. Mr. Sequeira‟s testimony
was therefore not misleading or false in light of his assertion that Ms. Doe
“never….gave me the feeling that anything was connected between this event
and her hiring….” [GT712.] The court does not find Mr. Sequeira‟s testimony
was misleading or false. Accordingly, the court does not find it necessary to
determine whether the materiality of the alleged misleading or false testimony.




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       3. Prosecution’s Closing Argument

       Due process also bars a prosecutor's knowing presentation of misleading
argument. (Miller v. Pate (1967) 386 U.S. 1, 6–7 [17 L. Ed. 2d 690, 87 S. Ct.
785]; Morrison, 34 Cal. 4th at p. 717.) The court finds that in summation the
prosecution unwittingly bolstered Ms. Doe‟s apparent credibility by emphasizing
her motive in reporting of the sexual assault had nothing to do with her trying to
keep her job and everything to do with her fear she was going to lose her job.
[GT914-915.] In light of the court‟s findings that knowledge of Ms. Doe‟s claim
and proposed settlement is imputed to the prosecution, this argument was
unintentionally misleading. The court finds where the jury had repeatedly been
given evidence that Ms. Doe had nothing to gain and everything to lose by
making the allegations, that there is a reasonable likelihood that the alleged
misleading argument could have affected the judgment of the grand jury.
(Agurs, 427 U.S. at 103; Giglio, 405 U.S. at pp. 153-154.)

III.   Disposition:

      The court denies the defendant‟s motion to dismiss pursuant to Penal
Code § 995.

        The court grants the defendant‟s non-statutory motion on grounds of
violation of due process.

      Accordingly, the court grants the motion to dismiss the indictment on all
counts.


Dated: _________, 2011            ______________________
                                  Thomas Hastings
                                  Judge of the Superior Court


Cc:    Michael Kotin, Defense Counsel
       Daniel Russo, Defense Counsel
       Joyce Blair, Supervising Deputy Attorney General
       Peter Flores Jr., Deputy Attorney General

       Drm//




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