Gressett - order granting 995 _10-2011_

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



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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.

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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.

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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.

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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.





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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,



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Evidentiary Exhibit H: Public Records Act Demand; Exhibit I: Memo from Joyce Blair to Robert Kochly;

Exhibit J: Juror Questions.

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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.]





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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.









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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





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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





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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





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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);





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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.”





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[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.]









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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).





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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.)





65

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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