235 Cal. App. 4th 439
Cal. Ct. App.2015Background
- Efrain Velasco-Palacios was charged with multiple counts of lewd and lascivious conduct with a child; public defender Ernest Hinman represented him.
- Prosecutor Robert Murray provided Hinman an English transcript of a Spanish police interrogation that contained two fabricated lines purporting to be a confession of penetration.
- Murray distributed the falsified transcript during active plea negotiations and suggested he might refile more serious charges; Hinman told defendant the transcript contained an admission and encouraged a plea/settlement discussion.
- Hinman discovered discrepancies between the recording he had and the People’s transcript, confronted Murray, and Murray admitted to adding the lines nine days after providing the transcript.
- Hinman filed a motion to dismiss for outrageous prosecutorial misconduct; the Public Defender removed Hinman after the People’s response included an allegation that Hinman had told Murray the defendant lacked a viable defense, and Hinman waived privilege to testify at an evidentiary hearing.
- The trial court found Murray’s fabrication was egregious, prejudiced the attorney-client relationship (forcing or causing removal of counsel and destroying trust), and dismissed the charges. The People appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecutor’s fabrication warranted dismissal for outrageous government misconduct | Murray’s misconduct was not prejudicial; dismissal was unnecessary because the proceeding could proceed fairly after disclosure | Fabrication during plea negotiations prejudiced defendant’s right to counsel by undermining trust and causing loss of chosen counsel | Dismissal affirmed: fabrication was conscience-shocking and caused demonstrable prejudice to right to counsel |
| Proper standard of review for dismissal sanction | Trial court findings entitled to deference but dismissal reviewed independently | Dismissal reviewed for abuse of discretion | Court applies abuse of discretion (deferential but not empty) to dismissal for misconduct |
| Whether brutality is required to find misconduct "conscience-shocking" | People relied on Uribe language suggesting brutality matters for substantive due process | Defendant: brutality not required when misconduct prejudices right to counsel | Court: brutality not required; egregious interference with counsel can be conscience-shocking for Sixth Amendment purposes |
| Appropriateness of dismissal vs. lesser remedies | Lesser remedies could neutralize taint; dismissal unnecessary absent impact on trial | Dismissal necessary to vindicate rights and deter misconduct given prejudice during plea negotiations | Dismissal appropriate under precedent (Morrison, Barber) because misconduct demonstrably prejudiced counsel relationship and deterrence demands strong sanction |
Key Cases Cited
- United States v. Morrison, 449 U.S. 361 (U.S. 1981) (dismissal appropriate when government misconduct causes demonstrable prejudice to right to counsel)
- Barber v. Municipal Court, 24 Cal.3d 742 (Cal. 1979) (government intrusion into attorney-client relationship warrants dismissal to vindicate trust and deter misconduct)
- People v. Noriega, 48 Cal.4th 517 (Cal. 2010) (improper removal of appointed counsel threatens constitutional right to counsel)
- People v. Uribe, 199 Cal.App.4th 836 (Cal. Ct. App. 2011) (distinguishes substantive due process brutality language from prejudice-to-counsel analysis)
- Morrow v. Superior Court, 30 Cal.App.4th 1252 (Cal. Ct. App. 1994) (egregious interference with attorney-client communications can require dismissal)
- Boulas v. Superior Court, 188 Cal.App.3d 422 (Cal. Ct. App. 1986) (government-caused loss of counsel during plea bargaining can warrant dismissal)
- People v. Moore, 57 Cal.App.3d 437 (Cal. Ct. App. 1976) (interference with right to counsel during plea negotiations may justify dismissal)