Pled out - 8 counts reduced to unlawful sexual intercourse, false imprisonment and human trafficking in plea offer

◼ The plea deal offer, has yet to be accepted by Judge Reinholtsen and sentencing is scheduled for this afternoon. If it is accepted, it looks like it would result in 8 counts being reduced to three counts. - John Chiv/Words Worth

After the case being dismissed the first time, mistrial the second time, a plea deal was reached right before the third trial started for David Anderson, a suspect who was originally charged with kidnapping, rape by force, forcible oral copulation of minor victim over age of 14, sexual battery, unlawful sexual intercourse, threats to commit crime resulting in death, false imprisonment and human trafficking.

Anderson has been represented for all three trials by private defense attorney Benjamin McLaughlin, who was appointed by the court as Anderson's attorney. The case was prosecuted each time by DDA Luke Brownfield....

◼ Sentence in human trafficking case: 9 years, 4 months - Will Houston/Times-Standard
Brownfield said in an interview with the Times-Standard that the plea deal was reached during a third trial in the case. During the first trial, other alleged "pimping and pandering" victims of Anderson's from two other California counties also testified, but Brownfield said the case was dismissed. When the district attorney's office refiled, the trial went on for about six to eight weeks before a mistrial was declared based on a statement made by a witness. Brownfield said it was about three weeks into the third trial when "we reached a negotiated deal to the human trafficking charge."

...Before the sentencing, McLaughlin asked Reinholtsen to consider waving or reducing the fines associated with the case — which included a $500,000 fine for the human trafficking charge — due to his client not having "the resources to pay any significant fines or fees."

'Human trafficking' case sentencing continued until November 10

◼ "One of the counts he pleaded to initially was incorrect. We were simply modifying the charging document to accurately reflect the disposition," Mr. McLaughlin told me outside court. - John Chiv/Words Worth

What a sweet deal

So we'll drop the attempted murder charge if you agree to waive your prelim...

What? Why?

This does not look good. Certain things should be avoided when the defense attorney is related to the Assistant DA... is the first reaction to this news. Seriously.
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◼ Silverio Sanchez preliminary waived; attempted murder charge dropped

DDA Zach Curtis stipulated with Silverio Sanchez's attorney, Mr. Ben McLaughlin, to drop Count 1 which is the attempted murder charge and the special allegation associated with it and Sanchez agreed to waive the preliminary hearing.

..."Our aim this morning was to get the attempted murder charge dropped and to litigate the rest of the trial," Mr. McLaughlin told me after the hearing. "By waiving the preliminary hearing, we are not acknowledging that Mr. Sanchez was driving the vehicle."

Two high profile jury trials; one murder; another human trafficking scheduled for tomorrow

◼ The Eddie Lee murder trial is being tried separately from his co-defendant Limmie Curry. District Attorney Paul Gallegos prosecuting and Lee being represented by Bay area lawyer Darryl Stallworth. - john Chiv/Words Worth

Worth noting as it could be Gallegos' last trial....

Delays and continuances continue

◼ Silverio Sanchez preliminary hearing vacated based on new information - John Chiv/Words Worth

Previously/Background:
◼ Canine brings attempted murder suspect Sanchez out of hiding and leads to arrest - John Chiv/Words Worth May 1, 2014

◼ Silverio Sanchez court hearing this afternoon; the cousin of the fugitive Sanchez - John Chiv/Words Worth May 12, 2014

This afternoon Silverio Sanchez was scheduled for a court hearing at 2 p.m. in Courtroom 4. Same name but not the guy undone by the canine. Same family, same name even the middle and they are cousins.

◼ Ronald Sanchez, Silverio Sanchez's brother arraigned today on parole violation - John Chiv/Words Worth May 8, 2014
◼ Fugitive Silverio Sanchez arraigned in two different courtrooms, old and new charges - John Chiv/Words Worth May 5, 2014

Ben McLaughlin appointed for all cases. New charges are serious violent felonies. Time not waived for recent charges and one of the old cases. Previous cases include misdemeanors and one felony.

◼ Silverio Sanchez preliminary hearing rescheduled for August 12 due to scheduling - John Chiv/Words Worth Aug 8, 2014
◼ Updated information on Silverio Sanchez aka PAL - John Chiv/Words Worth Apr 9, 2014
◼ Warrant issued for Silverio Sanchez for the intentional assault of a United States Forest Service Law Enforcement Agent - John Chiv/Words Worth Apr 8, 2014
◼ Silverio Sanchez preliminary hearing this morning, Eddie Lee case update Aug 6, 2014
◼ "We love him", Team Silverio in court to show solidarity and support - John Chiv/Words Worth Aug 6, 2014
◼ Siverio Sanchez bail enhanced by 5 million - John Chiv/Words Worth May 2, 2014
◼ Silverio Sanchez preliminary hearing continued until tomorrow - John Chiv/Words Worth Aug 12, 2014

THE DAVID ANDERSON HUMAN TRAFFICKING CASE

◼ "Because of my situation, I felt I had no control over what my body was doing; it was David's decision." - John Chiv/Words Worth

Currently California Evidence Code 402 hearings are being conducted in Courtroom 1 for the David Anderson case. Ben McLaughlin, defense attorney; Luke Brownfield for the People. Judge John Feeney is trial judge. These hearings are happening at the same time the Bodhi Tree trial is going on...

Previous info on this case:

In addition to the charges from the first case, an additional count added: human trafficking involving a minor. This is Count 8. Penal code 236.1 (c)
Also added were two counts of special allegation of felony sex offense and serious sex offense have been added to the charges. Bail that was set at $850,00 has not yet been posted.

Judge Miles presided over the preliminary hearing in the case that had been refiled. Anderson was arraigned for jury trial. Ben McLaughlin, defense attorney; Luke Brownfield for the People. Judge John Feeney is trial judge.

A previous case involving David Anderson, a felony with charges of kidnapping, rape by force, forcible copulation of a minor victim, sexual battery, unlawful sexual intercourse, threats to commit crime resulting in death and false imprisonment was prosecuted by Luke Brownfield for the People with Ben McLaughlin representing the defendant was dismissed on 2/24/14 by Judge Feeney. The defense had filed a motion that there was failure to provide adequate discovery. Count 1 of kidnapping and Count 6 threats to commit crime resulting in death were dismissed earlier in the case. The case was dismissed the day jury trial was to proceed.
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ON TOP OF MULTIPLE MURDER CASES...

Paul Gallegos lost another senior prosecutor. Reporter can't imagine why.

◼ Deputy DA resigns abruptly; unclear why prosecutor walked away on eve of murder trial - Thadeus Greenson/Times-Standard

Humboldt County Deputy District Attorney Ben McLaughlin abruptly resigned Wednesday on the eve of a murder trial he was slated to prosecute.

The reasons for McLaughlin's resignation remain unclear, but District Attorney Paul Gallegos confirmed that he was informed of McLaughlin's decision Wednesday night.

”He's a good prosecutor -- we'll miss him,” Gallegos said, declining to discuss any details of the resignation but saying he will step in to personally handle the prosecution of Joseph Eugene Miller. McLaughlin began the process of selecting a jury in the case on Monday.

McLaughlin has been trying violent felonies and other cases for the district attorney's office for more than four years and had become one of the office's senior prosecutors. Reached by email Thursday, McLaughlin declined to discuss the specific reasons for his resignation.

”I love the District Attorney's Office and the work it does,” McLaughlin said in the email. “I will truly miss working with law enforcement. They do a thankless job.”

Well thought of around the courthouse, McLaughlin was the prosecutor assigned to Humboldt County Drug Task Force cases and handled a variety of high-profile violent crimes.... Read The Rest.
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OK, Thadeus. Unclear. Really?

◼ Add Ben McLaughlin to the list: Brain Drain - wp

The only question people are asking is - what took Ben so long?

Wortman gets six years in prison for son's death; leaves plea in place in methamphetamine breast milk case

◼ Mom gets six years in prison for son's death; Wortman leaves plea in place in methamphetamine breast milk case - Times-Standard

A 27-year-old Loleta woman was sentenced to six years in state prison on Monday after pleading guilty to voluntary manslaughter stemming from the death of her infant son.

The conviction -- which was in doubt up until Maggie Jean Wortman agreed to leave her guilty plea in place on Monday -- is the state's first for voluntary manslaughter in a case where a woman stood accused of passing a lethal dose of methamphetamine to her child through breast milk while nursing.

Wortman's attorney M.C. Bruce pleaded with Humboldt County Superior Court Judge Bruce Watson to be lenient with his client, saying a grant of probation would be appropriate in the case as Wortman is a sober woman who bears little resemblance to the methamphetamine addict taken into custody.

Watson said he felt the matter warranted a prison commitment, saying it could be argued that the maximum 11-year sentence would be more appropriate, primarily because of the vulnerability of the victim in the case....

Wortman pleaded guilty to voluntary manslaughter in February, but did so under the impression she was eligible to receive a grant of probation in the case. Under the California Penal Code, however, Wortman is statutorily ineligible for probation in the case because she committed the manslaughter offense -- which classifies as a violent felony -- while already on felony probation stemming from a May 2010 conviction for maintaining a drug house.

...”I'm asking the court not to punish her because of her addictions,” Bruce said, adding that Wortman has already suffered enough. “This lady has suffered the death of her child -- that's the most horrible thing any of us could ever suffer. No matter what this court does, that is something that is never going to go away for Maggie.”

Bruce went on to argue that a prison sentence would destroy the progress Wortman has made in the more than one year she has been in jail, during which she has been clean, taken classes and undergone psychiatric counseling.

”If this court sends her to prison for six years, we're going to lose her,” Bruce said. “We all know the prisons are full of drugs, and that's a long time to sit with nothing to do. ... If we sentence her to prison for six years, we're throwing her away.”

Prosecuting Deputy District Attorney Ben McLaughlin said no one is disputing that Wortman has suffered in the wake of her son's death. But, McLaughlin said, he doesn't see Wortman's case as being any different than that of the alcoholic who gets behind the wheel of a car and causes a fatal collision.

”We're not punishing the addict,” McLaughlin told the court. “What we're doing here, your honor, is punishing the conduct.”...

Not even a plea deal. No evidence.

◼ Judge dismisses murder charge against Loleta woman - Thadeus Greenson/Times Standard

A Humboldt County judge has dismissed the murder charge facing a Loleta mother accused of killing her baby with methamphetamine-laced breast milk last year.

In a ruling filed Wednesday, Humboldt County Superior Court Judge Bruce Watson threw out the murder charge against Maggie Jean Wortman, 27, finding that no evidence was presented at the case's preliminary hearing to establish that Wortman knew she was endangering her infant son's life when she breastfed him after allegedly smoking methamphetamine.

Humboldt County Deputy District Attorney Ben McLaughlin said Wednesday he may choose to refile the murder charge and start the case over again from square one.

”We did not consider a murder count until after the testimony at the preliminary examination but thought there were sufficient facts to support such a charge,” McLaughlin said in an email to the Times-Standard. “Our investigation has continued since the preliminary examination, and we will meet as a group to consider whether or not to refile the murder charge. If we decide to refile, the preliminary examination will be considerably more involved.”

Wortman was arrested after her 6-week-old son, Michael Phillip Acosta III, was taken not breathing to a local hospital the morning of Nov. 21, 2010. Michael was pronounced dead that day, and a subsequent autopsy determined his cause of death to be “methamphetamine toxicity.”

Guilty verdict in rape case; prosecutor says victim's courage 'can't be overstated'

◼ Guilty verdict in rape case; prosecutor says victim's courage 'can't be overstated' - TS

The jury -- comprising seven women and five men -- found Walker guilty of forcible rape while acting in concert and forcible oral copulation in concert more than one year after he was arrested for raping 20-year-old Jane Doe in a wooded area near the Arcata Sports Complex.

Walker, 38, of Eureka, faces a maximum sentence of 10 years in prison and will have to register as a sex offender for life.

Jane Doe, who testified in the case and appeared in court Thursday to hear the verdict read, hugged prosecuting Deputy District Attorney Ben McLaughlin and DA investigator Jack Bernstein after the hearing, thanking them with tears in her eyes.

”I'm elated with the verdict and really proud of Jane Doe,” McLaughlin said. “I don't say this as hyperbole, but she really showed a level of courage that can't be overstated. She came into court and faced her rapist and showed him she is not the easy target of opportunity he thought she would be.”

Attempts to contact Walker's attorney Owen Tipps were not immediately successful.

APD Chief Tom Chapman attended Thursday's hearing and commended the people who came forward at the scene to help Jane Doe, which he said allowed his officers to take Walker into custody in short order and conduct a thorough investigation. Chapman also said the DA's Office's work on the case was “outstanding.”

”The DA's Office was tireless in its effort to seek justice in this matter,” Chapman wrote in an email to the Times-Standard. “Kevin Walker is a predator. He belongs in prison.”

Walker was arrested in May 2008 after witnesses reported him and two other men fighting in a Trinidad beach parking lot. Witnesses said Walker and another man were holding the third man on the ground, hitting him in the head with a metal pipe and stepping on his face while shouting racial slurs. Walker and the other assailant, Collin Roczey, were arrested on suspicion of assault with a deadly weapon, sodomy and kidnapping, and later pleaded guilty to the assault charge in a plea agreement reached when the victim in the case refused to cooperate with their prosecution.

Walker was on probation from the 2008 case when he committed the rape -- a violation that will add another year to whatever prison sentence a judge imposes.

”We all thought that Kevin Walker really eluded justice with respect to his conduct in 2008, and everybody was very committed to prosecuting this case to the best of our abilities,” McLaughlin said. “We invested ourselves quite a bit in the case. In light of his prior conduct that was sexualized violence against another party, this verdict is obviously important because he now has a conviction to reflect who he is and what he is.”

If Gallegos makes a list of law enforcement officers with ethics problems, does he have to put himself on it? (NOTATION ADDED)

◼ a routine DUI arrest in Ferndale and ends almost two years later with a California court of appeal tossing the case after finding that DA Investigator Wayne Cox and Deputy DAs Ben McLaughlin and Randy Mailman committed prosecutorial misconduct and violated the defendant’s constitutional rights. the Humboldt Mirror **
(** Note that the State Bar dismissed the referral for prosecutorial misconduct as unfounded.)

"Brady List?": DA Investigator Wayne Cox, Deputy DAs Ben McLaughlin and Randy Mailman DA Investigator Wayne Cox, Deputy DAs Ben McLaughlin and Randy Mailman

◼ Interesting case about to hit the fan? - THE PEOPLE, Plaintiff and Respondent, v. ROCKY CROWL, Defendant and Appellant. - watchpaul 3/31

Other DA staffers who belong on the "Brady List":
◼ Allan Lee Dollison, rumored to be on the brink of becoming the next Assistant District Attorney to Paul Gallegos.

"Brady List?": Deputy DA Allan Lee Dollison

From the comments at the Mirror: Arnie Klien. The Judge Watson admonished him in the Davis trial and the court of appeal stated that he committed prosecutorial misconduct. The case was saved by Judge Watson. THE PEOPLE, v. MATTHEW C. DAVIS, Defendant A121549

"Brady List?": Deputy DA Arnie Klein
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ADDED: Allan Dollison served Humboldt County's DA's office for 6 years and 4 months. He details his record, and his reasons for leaving here - ◼ My record at the DA's Office - Allan Dollison/for the Times-Standard
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NOTATION: 7/13/2013 - It's an interesting aspect of this blog that other people often get caught in the net, based on their entrance into the Gallegos saga. And so their names live online, to be unearthed whenever they apply for a job. Sometimes the searches that lead people here are for other reasons, but it usually has to do with a job search.

And, so it is that Allan Dollison appears here. His time with the DA's office has come and gone, he rose through Gallegos' ranks, and was slated, some said, to become Assistant DA. He was a loyal player, and, I believe, a true believer.

Through my work here, I am often kept informed about cases, how they're handled, how the various Deputy DA's do their job, interact with victims, and so forth.

And I feel it necessary to say this. I have come to the conclusion, that, for all his past mistake, Allan Dollison turned out to be one of the best and most honest of the bunch, far surpassing his boss, Paul Gallegos.

He has since left the DA's office, and, as is often the case when people leave, I get the chance to talk to them. I have talked with Allan Dollison. And, to his credit, he never once asked me to remove any of this info, as damaging as it is to him. I respect that, and I think it's noteworthy.

If you're looking to hire him, it's worthy of consideration.

I'm not pulling anything down, as that would be a disservice to the facts as they have unfolded, but I am adding this, to mitigate that online-lives-forever reality.

(Updated) Interesting case about to hit the fan? - THE PEOPLE, Plaintiff and Respondent, v. ROCKY CROWL, Defendant and Appellant.

[DOC] DOC - California Courts
File Format: Microsoft Word - View as HTML
◼ Mar 29, 2011 ... The People appeal after the trial court granted the motion of Rocky Crowl ( defendant) to dismiss the information on the ground that the ...
www.courtinfo.ca.gov/opinions/nonpub/A127221.DOC

Filed 3/29/11 P. v. Crowl CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ROCKY CROWL, Defendant and Appellant.
A127221 (Humboldt County Super. Ct. No. CR093710)

The People appeal after the trial court granted the motion of Rocky Crowl (defendant) to dismiss the information on the ground that the prosecution violated his constitutional right to compulsory process by intimidating defense witnesses. On appeal, the People contend the prosecution did not violate defendant’s right to compulsory process by charging two defense witnesses with having committed perjury at defendant’s preliminary hearing. We shall affirm the trial court’s order dismissing the information.

PROCEDURAL BACKGROUND
Defendant was charged by information with driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)—count one); driving with a blood alcohol level of .08 or more (Veh. Code, § 23152, subd. (a)—count two), with the further allegation that his blood alcohol level exceeded .15 percent (Veh. Code, § 23578); and driving on a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)—count three). It was further alleged as to counts one and two that defendant had committed an alcohol-related driving offense within the past 10 years (Veh. Code, § 23550), and as to count three that defendant had suffered a prior conviction for driving with a suspended or revoked license (Veh. Code, § 14601.5, subd. (a)).

Defendant filed a motion to dismiss the information on the ground that the prosecutor had committed misconduct by dissuading defense witnesses from testifying. Following a hearing, on October 26, 2009, the trial court granted the motion and dismissed the information.

On December 22, 2009, the People filed a notice of appeal.

FACTUAL BACKGROUND
Charged Offenses
Ferndale Police Officer Jason Hynes testified that, on June 16, 2009, at around 4:35 p.m., he saw a small, white car stall near the intersection of Main Street and Shaw Avenue in Ferndale; he was about 80 feet away from the stalled vehicle. The car, which was missing its front and rear windshields as well as its side rear windows, was splattered with blue paint, and had a hood that was about to fall off, started up again and passed within about 20 feet of where he stood. He saw three occupants inside the car. The driver had short dark hair and dark facial hair. The male passenger in the front seat was lighter skinned and had short light hair and facial hair. The female in the right rear passenger seat had dirty blond or light brown hair. The car was driving at the speed limit and was not swerving, but the absence of a windshield drew his attention.

Hynes saw the vehicle turn into a city parking lot. He wanted to investigate, so he went back to the Ferndale Police Department to get another officer to accompany him. About five minutes later, Hynes drove to the parking lot with Officer Frank. He saw the car, but there was no one inside. The officers started to look for the three people he had seen in the car and, about two minutes later, he saw them come around a corner. He recognized the man he had seen driving the car; he later identified the man as defendant. Defendant briefly ducked into a causeway, and then came back out. After contacting defendant, Hynes observed signs that he was intoxicated, including a stalling walk, the smell of alcohol, red and watery eyes, and slurred speech.

While Hynes was talking to defendant, the other two people, defendant’s girlfriend, Jessica Sneed, and his cousin, Christopher Crowl (Christopher), were five or more feet away. They did not appear to be under the influence of alcohol or drugs. Hynes said he had seen defendant driving, and defendant stated that he had been driving. Defendant said he came to Ferndale to buy cigarettes and told Hynes that he had drunk five beers earlier in the day. Sneed said defendant had consumed about four beers. At some point, Christopher asked, “What if I was driving?”

Hynes then conducted several field sobriety tests on defendant, which demonstrated a high level of intoxication. Defendant refused to take a final “walk and turn” test, telling Hynes to take him to jail. Hynes then arrested defendant. After Hynes placed defendant in the patrol car, defendant became combative; he yelled, swore, and banged his head on the rear seat. Once at the police station, defendant was a bit calmer, but still exploded at times. He told Hynes that “he would not stop. He would continue to drink and drive.” A breathalyzer (“EPAS”) test administered at the police station registered a blood-alcohol level of .245 percent.

Hynes acknowledged that both at the time of the incident and at the hearing, Christopher’s hair and facial hair lengths were similar to defendant’s hair and facial hair lengths. He also acknowledged that the two men were roughly similar in build.

Christopher testified that defendant is his cousin. On the day that defendant was arrested, Christopher, defendant, and defendant’s girlfriend had driven from a friend’s house in Loleta to Ferndale in a little white Geo automobile that they had borrowed from another cousin.

Christopher drove the car from Loleta to Ferndale and into the city parking lot. The three of them then went into a liquor store. When they came back outside, a police officer made contact with them and began to question defendant. During that conversation, Christopher told the officer that he had been driving the car. The officer said to “shut up, I was lying and I wasn’t drunk. Shut up and stay out of it.”

Christopher testified that his and defendant’s hair and beard lengths were pretty similar and that they are about the same height; defendant is a couple of years older than Christopher. He described defendant’s hair color as “blondish brown” or “light brown,” and his own hair color as “dark blond.”

On cross-examination, Christopher acknowledged that he knew that defendant had some prior DUI convictions. He thought defendant had drunk a beer or two that day and was “[m]aybe a little buzzed.”

Jessica Sneed testified that defendant had been her boyfriend for about six years. On June 16, 2009, she had been with defendant the whole day. While traveling in the white Geo to the parking lot in Ferndale, she was sitting in the back seat, Christopher was driving, and defendant was in the passenger seat. After being contacted by Hynes, “[w]e tried to tell him that Chris was driving and he didn’t really want to listen to us. He wanted to start doing tests on [defendant].”

Sneed further testified that defendant and Christopher have “[k]ind of” similar appearances, although Christopher’s hair is more a “reddish, dirty blond.”

At the conclusion of the preliminary hearing, the trial court concluded: “In this matter for the purpose of preliminary hearing, there’s a different burden of proof, of course, as compared to jury trial. I think there’s going to be a problem with this case under the burden of reasonable doubt. However, for the purposes of preliminary hearing, there is sufficient evidence to hold the defendant to answer . . . .”

Hearing and Ruling on the Motion to Dismiss

On October 23, 2009, the trial court conducted a hearing on defendant’s motion to dismiss the information. The court considered a recorded statement made by defendant after his arrest and while he was being transported to the police station. In the recording, defendant commented to the arresting officers, “I already know I was breaking the law. [¶] . . . [¶] Fucking ten DUI’s. I’m going to hell. . . . Yeah, I know I shouldn’t be driving.” Later, he said, “I don’t know what’s going on. . . .” Still later, he said, Well, . . . this is my fifth DUI. . . . Only I was coming down just for a fucking cigarette. Oh that’s why I’m so pissed. I wanted a fucking cigarette. [¶]. . . [¶] Fucking cigarette. Oh I hate you guys. I hate all people. I can’t believe this — for a fucking cigarette. . . . Oh well. I’ll do the charges. . . . What the fuck was I thinking. I knew I was taking a chance. Not like this. ‘Cause I gotta go to jail.” Defendant then said his girlfriend didn’t have a driver’s license, and also said, “The only reason I was driving is because I know how to drive and she doesn’t.” He also said, “I shouldn’t have been driving without a license.” Finally, he said, “Fucking dumb ass. . . . fucking cigarette. . . . My fucking fifth DUI.”

The court took judicial notice of the files in the perjury cases against Sneed and Christopher.

On September 4, 2009, Humboldt County District Attorney’s Office Investigator Wayne Cox had obtained felony arrest warrants for Sneed and Christopher based on their allegedly perjured testimony—that Christopher, not defendant, was driving on June 16, 2009—at defendant’s preliminary hearing.

Sneed was arrested on September 4, 2009. After advising her of her Miranda rights, Cox interviewed Sneed, who initially “maintained her story that Christopher Crowl, not Rocky Crowl, was the driver of the vehicle.” After being cautioned against the repercussions of lying again, Sneed “began crying and hyperventilating.” She eventually admitted that defendant had been driving and that Christopher had asked her to testify that Christopher was driving. She had agreed to do so because defendant “ ‘doesn’t need a DUI.’ ”

Christopher was arrested on September 7, 2009. On the morning of September 8, Investigator Cox advised Christopher of his Miranda rights and then interviewed him. After Cox said that Sneed had told him the truth and implied that Christopher would go to prison if he continued to claim that he was driving, Christopher said that defendant had been driving earlier, but that he, Christopher, was driving when they pulled into the parking lot behind the liquor store. Because he did not want to go to prison for four years, Christopher eventually admitted that defendant was driving. He said that he had claimed to be driving because it would be defendant’s fifth DUI and he did not want him to have to go to prison. He also said that he, defendant, and Sneed had decided together that Christopher and Sneed would testify that Christopher was driving.

On September 8, 2009, criminal complaints were filed against Sneed and Christopher charging each of them with perjury (Pen. Code, § 118) and being an accessory to a felony (Pen. Code, § 32).

The court also considered at the hearing a series of e-mails between Deputy District Attorney Ben McLaughlin and the office of Sneed’s counsel, over the course of which the Deputy District Attorney insisted that Sneed not plead no contest, but that she plead guilty “under oath,” “with a statement saying that she agreed to say [Christopher] was driving and that her statement to Wayne Cox was true and correct to the best of her recollection. . . . Memories can differ, but it needs to be clear that [defendant] was driving.” When Sneed’s attorney objected to a guilty plea “under oath,” the Deputy District Attorney copied Sneeds’s counsel on an e-mail in which he wrote that the plea offer would likely be withdrawn due to Sneed’s rejection of the offer by refusing to plead guilty under oath.

Both Christopher and Sneed were called to testify at the October 23, 2009 hearing on defendant’s motion to dismiss and both asserted their Fifth Amendment right not to testify when asked about the incident that took place on June 16, 2009.

Also at the October 23 hearing, defendant’s father, Gary Crowl, testified that he drove Christopher and Sneed to defendant’s preliminary hearing. They all rode together in the cab of his pickup truck, and he did not hear Christopher and Sneed discuss a plan to lie at the preliminary hearing about who was driving on June 16.

On October 26, 2009, the trial court granted defendant’s motion to dismiss. In explaining its ruling, the court found the following facts: Between the August 12, 2009 preliminary hearing and September 4, someone in the prosecutor’s office listened to the tape of defendant and the arresting officers and formed an opinion that Sneed and Christopher committed perjury at the preliminary hearing. On September 4, the prosecutor obtained arrest warrants for Sneed and Christopher. At Investigator Cox’s request, Sneed was arrested at about 12:45 p.m. on September 4, and was interviewed by Cox at the jail 45 minutes later, at about 1:30 p.m. The court found that Cox “basically told [Sneed] that she was lying, that she had committed perjury, and that the D.A.’s Office would be able to prove that she had committed perjury, and that the punishment for that was two years, three years, or four years in prison. Miss Sneed was extremely reluctant to change her story, but Investigator Cox was very insistent. He wouldn’t give up. And he tried, basically, everything he could, all of his tactics to get her to change.” Even after Sneed hyperventilated, “Cox went ahead with his insistent questioning” until Sneed admitted she had lied at the preliminary hearing. The court also noted that because she was arrested on the Friday of a three-day weekend, Sneed necessarily remained in jail over the long weekend.

With respect to Christopher, the court noted that he was arrested on Labor Day and interviewed by Cox the next morning at 7:00 a.m., which was “extremely unusual.” Cox used the same techniques and asked the same kinds of questions as he did with Sneed and, again, Christopher “was extremely steadfast in his position, reluctant to change. And after Investigator Cox tried, basically, in my opinion, everything he could think of, he finally got . . . the witness to agree that . . . his testimony had not been true.”

The court observed how unusual prosecution’s conduct was in arresting and questioning Sneed and Christopher for a nonviolent offense. As the court stated: “It is so out of the ordinary. [Cox] wanted to—I think twofold, he wanted to convict the defendant here, Mr. Rocky Crowl, of felony driving under the influence, and he wanted to convict the two witnesses of perjury. And he went to extraordinary lengths—you know—as you compare what’s normally done with what was done in this case.” The court had never seen a so-called Ramey warrant used in “this kind of a case . . . where there’s nothing that critical timewise.” In addition, other than in welfare fraud cases, the court had seen a perjury charge only once in 12 years on the bench, and that was in a murder case where the prosecutor believed a witness lied in court after agreeing to testify truthfully in exchange for a plea agreement in another case.

The court continued: “Clearly, someone in the District Attorney’s Office was very upset at the witnesses for what they believed was perjury, and they were worried that this felony D.U.I. . . . they were afraid this person would walk.” The court believed this fear was based on the prosecution’s knowledge that (1) defendant likely would not testify at trial so that his incriminating statement would not be admissible (assuming the entire recording did not violate Miranda), (2) these two witnesses would be the only defense witnesses, and (3) the magistrate at the preliminary hearing had questioned whether there would be enough evidence to convict defendant. The court further stated that the prosecutor’s office knew there were potential problems with the case because of the “ballpark” resemblance between defendant and Christopher. “And so I think somebody realized this case is in trouble.”

The court then observed that the “net result” of the prosecution’s actions was that Sneed and Christopher would “take the Fifth” at defendant’s trial both because of the pending perjury and accessory after the fact charges and “also, because it doesn’t take a mental genius to realize that if they testified at trial the same way they did at the preliminary hearing they’re gonna be charged additionally with perjury,” given that Cox “had already told them that they’re guilty” and “that it could be proved that they were lying.” The court concluded, after reviewing all of the facts, that defendant’s due process rights were violated.

In terms of a remedy, the court asked whether the People were willing to allow the witnesses’ preliminary hearing testimony to be used at trial, and Deputy District Attorney Ben McLaughlin said no. The court therefore dismissed the charges in this case as well as in pending probation violation matters.

DISCUSSION

I. Violation of Defendant’s Right to Compulsory Process

The People contend the trial court improperly found that the prosecution violated defendant’s constitutional right to compulsory process by charging Christopher Crowl and Jessica Sneed with having committed perjury at defendant’s preliminary hearing.

“The right of an accused to compel witnesses to come into court and give evidence in the accused’s defense is a fundamental one.” (People v. Jacinto (2010) 49 Cal.4th 263, 268 (Jacinto).) The Sixth Amendment provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor. . . .’ This constitutional guarantee, generally termed the compulsory process clause, applies in both federal and state trials. [Citation.]” (Ibid., quoting Washington v. Texas (1967) 388 U.S. 14, 15, fn. 1.) “Article I, section 15 of the California Constitution similarly guarantees as a matter of state constitutional law that ‘[t]he defendant in a criminal cause has the right . . . to compel attendance of witnesses in the defendant’s behalf. . . .’ [The California Supreme Court], as the final arbiter of the meaning of the California Constitution, has likewise found the state constitutional right to compel the attendance of witnesses a basic component of a fair trial. [Citations.]” (Jacinto, at p. 269.)

As our Supreme Court has explained, “[a] criminal defendant’s rights under the compulsory process clause can be infringed in several ways. ‘They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. [Citations.] They also include statements to defense witnesses warning they would suffer untoward consequences in other cases if they were to testify on behalf of the defense. [Citations.] Finally, they include arresting a defense witness before he or other defense witnesses have given their testimony.’ [Citation.]” (Jacinto, supra, 49 Cal.4th at p. 269, quoting In re Martin (1987) 44 Cal.3d 1, 30-31 (Martin); accord, People v. Bryant (1984) 157 Cal.App.3d 582, 590.)

To prevail on a claim of interference with the right to present witnesses under the compulsory process clause, a defendant must establish three elements. “First, he must demonstrate prosecutorial misconduct, i.e., conduct that was ‘entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.’ [Citations.] [¶] Second, he must ‘establish interference, that is, a causal link between the prosecutorial misconduct and the defendant’s inability to present the witness.’ [Citations.] In this regard, the [defendant] is ‘not required to prove that the conduct under challenge was the “direct or exclusive” cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witness’s refusal to testify [citation].’ [Citation.]” (In re Williams (1994) 7 Cal.4th 572, 603 (Williams), quoting, inter alia, Martin, supra, 44 Cal.3d at p. 31; accord, Jacinto, supra, 49 Cal.4th at pp. 269-270.) “ ‘Finally, the defendant must show the testimony he was unable to present was material to his defense.’ [Citations.]” (Jacinto, at p. 270.)

In the present case, the People primarily address the first element—prosecutorial misconduct—in arguing that defendant’s due process right to compulsory process was not violated, but briefly argue, in addition, that defendant was not deprived of the opportunity to present meaningful evidence.

A. Prosecutorial Misconduct

According to the People, “courts do not find misconduct because a prosecutor charged a witness with perjury after the witness has committed that offense. Such action differs materially from a prosecutor’s threats to a witness about anticipated testimony. It is entirely within the proper performance of a prosecutor’s duties to investigate and charge a completed crime.” Thus, they continue, the arrest, interrogation, and filing of charges against the two witnesses in this case amounted to conduct that was not “ ‘entirely unnecessary to the proper performance of the prosecutor’s duties’ ” (Williams supra, 7 Cal.4th at p. 603) and, therefore, the trial court’s finding of prosecutorial misconduct cannot be sustained.

In support of this argument, the People rely on Williams, supra, 7 Cal.4th 572 and Jacinto, supra, 49 Cal.4th 263. In Williams, our Supreme Court held, in habeas corpus proceedings, that the prosecution did not interfere with the petitioner’s right to present witnesses when it, inter alia, (1) indicted and arrested one defense witness for perjury in past cases two days before the petitioner’s evidentiary hearing on his habeas petition was scheduled to begin, and (2) indicted another defense witness for perjury some months before the hearing was to take place. (Williams, supra, 7 Cal.4th at pp. 605-606.) With respect to the first witness, the record reflected that he had informed the prosecutor, well before his indictment, that his statement in a prior declaration that another witness had lied at the petitioner’s trial was itself a lie and, further, that he would so-testify at the petitioner’s hearing. (Ibid.) Based on these facts, the court concluded that, despite the timing of the witness’s indictment and arrest and his refusal to testify at the hearing, the petitioner had failed to show how the government’s conduct in arresting the witness for perjury “was wholly unnecessary to the performance of its duties and was of such a character as to transform [the witness] from a willing witness to one who refused to testify.” (Id. at p. 606.)

As to the second witness, the record showed that he was indicted for perjury months before the petitioner’s evidentiary hearing was set to begin. (Martin, supra, 44 Cal.3d at p. 606.) The court rejected the petitioner’s argument that the purpose of the indictment was to intimidate the witness and keep him from testifying, given that the evidence showed that the prosecution was not apprised that the witness was a possible witness at the defendant’s hearing until eight months after his indictment. (Ibid.)

Thus, in Williams, the evidence affirmatively showed that the government had not indicted the two witnesses to force them or other witnesses to invoke their Fifth Amendment rights at the petitioner’s evidentiary hearing. The Williams court did not address whether arresting defense witnesses for perjury before a defendant’s trial in the distinct circumstances presented here could constitute interference with that defendant’s right to present witnesses.

In Jacinto, supra, 49 Cal.4th 263, 269, the defendant claimed that the prosecution had violated his compulsory process rights when the sheriff released a defense eyewitness, following his release from jail, to federal immigration officials, “knowing he would most likely be deported and thus unavailable to testify on defendant’s behalf.” Our Supreme Court found that the defendant had not satisfied the first element necessary to demonstrate such a violation: prosecutorial misconduct. First, it was the sheriff—acting independently and not at the prosecutor’s behest—who released the witness to immigration officials, and the sheriff’s acts could not be attributed to the prosecution. (Id. at pp. 270-271.) Second, even if the sheriff could be characterized as a member of the prosecution team, United States Immigration and Customs Enforcement (ICE) had issued a federal immigration detainer for the witness once he was released from jail and, as the court observed, “The federal government’s power over immigration issues is supreme. [Citations.] Faced with an immigration detainer from ICE, the sheriff and his employees properly complied, as a matter of comity, by releasing [the witness] to ICE’s custody.” (Id. at pp. 272-273.) Third, the court observed that the defendant “was not powerless to ensure that [the witness] would appear at his trial,” given that there were procedures potentially available to the defendant to make certain the witness could testify, either in person or by deposition. (Id. at pp. 273-274.)

Jacinto thus is factually distinguishable from the present case in several ways and does not provide support for the People’s generalized argument that “the prosecutor does not commit misconduct when he engages in conduct that is legally permissible or authorized, even though that conduct ultimately results in the loss of a material defense witness.”

The California Supreme Court’s analysis in Martin, supra, 44 Cal.3d 1 is more relevant to our inquiry than the cases cited by the People. In Martin, a prosecution investigator arrested Stephen Aguilar, the first defense witness to testify at the petitioner’s trial, just outside the courtroom in the presence of people the investigator knew to be defense witnesses who had not yet testified, immediately after Aguilar gave testimony that contradicted that of the prosecution’s key witness. (Id. at p. 33.) At the time of the arrest, the investigator saw no sign that Aguilar was going to flee. (Id. at p. 34.) In an opinion granting the petitioner’s petition for writ of habeas corpus, our Supreme Court found that although there was no direct contemporaneous evidence of prosecutorial interference with the petitioner’s constitutional right to present the testimony of witnesses at trial, this evidence, along with evidence that another defense witness subsequently invoked his Fifth Amendment rights and refused to testify on the petitioner’s behalf, constituted circumstantial evidence from which the existence of such misconduct could be inferred. (Id. at pp. 33-34.)

The Attorney General also argued in Martin “that the arrest of Aguilar was proper as a constitutionally reasonable seizure of the person and as such was proper insofar as petitioner’s compulsory-process rights were concerned.” (Martin, supra, 44 Cal.3d at p. 35.) The court rejected this argument, explaining that it does not follow that government conduct that does not violate the Fourth Amendment guarantee against unreasonable searches and seizures necessarily does not violate the Sixth Amendment’s recognition of a defendant’s right to present evidence on his own behalf. (Ibid.) The court concluded: “It is clear to us that the prosecution committed misconduct under the Sixth Amendment in arresting Aguilar when and where it did: [the investigator] engaged in activity that was completely unnecessary under the circumstances—he was under no legal or practical compulsion to make the arrest in the presence of defense witnesses and the press—and was of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify’ [Citation].” (Ibid.)

Likewise, in the present case, simply because the District Attorney’s Office is authorized to arrest, interrogate, and charge people suspected of committing crimes, including perjury, does not mean it has carte blanche to engage in activity apparently designed to—and certainly with the effect of—undermining a defendant’s right to compulsory process. As in Martin, even assuming the prosecution’s conduct was otherwise proper, the timing and manner of the arrest, interrogation, and perjury charges filed against Christopher and Sneed were “completely unnecessary under the circumstances,” as was the use of a Ramey warrant, and support the inference that the prosecution interfered with defendant’s constitutional right to present the testimony of witnesses at trial. (Martin, supra, 44 Cal.3d at pp. 33, 35.)

Similarly, in Bryant, supra, 157 Cal.App.3d 582, 588-589, the sole non-police witness to the defendant’s traffic stop was arrested for perjury allegedly committed at defendant’s preliminary hearing. The witness subsequently refused to testify at defendant’s probation revocation hearing only after the prosecutor warned the witness that he would be facing another count of perjury if he testified consistently with his preliminary hearing testimony. (Ibid.) The appellate court held that the government’s coercive action caused this material witness to become unavailable, thereby violating the defendant’s constitutional right to a fair trial. (Id. at p. 588.)

Here, as the trial court stated, given the nature of the prosecution’s conduct, Sneed and Christopher plainly did not need to be reminded of the pending charges and the potential for additional charges to be filed before they exercised their Fifth Amendment rights.

In addition, as the trial court found at the hearing on defendant’s motion to dismiss, the evidence in the record regarding the prosecution’s conduct raises a red flag regarding the motive for this highly unusual conduct. Moreover, regardless of motive, these actions are circumstantial evidence of misconduct, given that it is “difficult to imagine” that the prosecution’s conduct would not have intimidated both witnesses. (Bray v. Peyton, supra, 429 F.2d at p. 501; see also Martin, supra, 44 Cal.3d at pp. 33-34.) The trial court observed that the “net result” of the prosecution’s actions was that both witnesses would invoke their Fifth Amendment rights at defendant’s trial, as they did at the hearing on the motion to dismiss, because of the pending charges against them as well as “because it doesn’t take a mental genius to realize that if they testified at trial the same way they did at the preliminary hearing they’re gonna be charged additionally with perjury.” (Cf. Bryant, supra, 157 Cal.App.3d at pp. 588-589.)

For these reasons, we reject the People’s central argument: that, because there was probable cause to arrest the two witnesses for perjury, the prosecution’s conduct cannot be considered “ ‘entirely unnecessary to the proper performance of the prosecutor’s duties.’ ” (Williams, supra, 7 Cal.4th at p. 603.) On the contrary, as we have explained and as Martin makes clear, this extraordinary rush to first obtain a Ramey warrant, and then to arrest, insistently interrogate, and charge these two defense witnesses with the commission of nonviolent crimes was “completely unnecessary under the circumstances” given that Cox was “under no legal or practical compulsion” to take these actions when and in the manner he did. (Martin, supra, 44 Cal.3d at p. 35.) Accordingly, we agree with the trial court’s conclusion that Cox’s conduct on behalf of the District Attorney’s Office “was of such a character as ‘to transform [each of the two witnesses] from a willing witness to one who would refuse to testify,’ ” and therefore constituted prosecutorial misconduct. (Ibid.)

Finally, the People argue that “[a]dopting a rule that the prosecutor must delay filing a legally authorized criminal complaint against a potential defense witness until that witness has testified at defendant’s trial presents significant difficulties for the prosecutor,” including challenges related to statutes of limitations, motions for dismissal based on pre-accusation delay, and potential loss of evidence. (See People v. Pearson (Mich.App. 1975) 232 N.W.2d 408, 410 affd. in part and revd. in part in People v. Pearson (Mich. 1979) 273 N.W.2d 856 [Michigan Court of Appeal refused to “place the stamp of judicial approval upon requiring prosecuting attorneys to delay for an indeterminate time the filing of charges because an accused is a witness in a separate case”].) We adopt no such rule here. Rather, we simply conclude, in the particular circumstances of this case, that the evidence in the record supports the trial court’s finding that the prosecution’s unnecessary urgency in arresting, forcefully interrogating, and filing perjury and accessory after the fact charges against Sneed and Christopher resulted in effectively precluding these previously willing defense witnesses from testifying at defendant’s trial. This was misconduct.

B. Materiality

The People claim that the record does not support a finding that Sneed and Christopher’s testimony would have been material and favorable to defendant’s defense because perjured testimony is not material testimony.

We conclude that the People have forfeited this issue on appeal because they expressly conceded in the trial court that the two witnesses’ testimony was material to the defense. (Cf., e.g., People v. Miller (2007) 146 Cal.App.4th 545, 551 [where District Attorney expressly conceded lack of probable cause for search, Attorney General could not justify search on that ground on appeal].)

To “demonstrate ‘materiality,’ ” the defendant “ ‘must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense.’ [Citation.]” (Martin, supra, 44 Cal.3d at p. 32, quoting United States v. Valenzuela Bernal (1982) 458 U.S. 858, 867.)

In any event, Sneed’s and Christopher’s expected testimony plainly was material. The truth of the perjury allegations had not been adjudicated at the time of the court’s ruling on defendant’s motion to dismiss, and the witnesses had never testified differently under oath.

The court’s mere acknowledgement that these witnesses may have committed perjury does not constitute an adjudication that they in fact did so. (See Bryant, supra, 157 Cal.App.3d at p. 592, fn. 5 [“It is not the court nor the prosecuting attorney’s function to attempt to purge the court of a witness who might possibly offer perjured testimony. . . . Thus, the believability of the witness’ testimony goes to its weight not its admissibility”]; compare People v. Harbolt (1988) 206 Cal.App.3d 140, 155 [where potential witness stated under oath that he had not committed crimes with which defendant was charged, materiality of his testimony was not demonstrated]; U.S. v. Williams (2d Cir. 2000) 205 F.3d 23, 30 [where trial court had found credible defense witness’s testimony at defendant’s second trial in which he recanted testimony presented at first trial, materiality was not shown].)

As the trial court explained when it ruled on the motion to dismiss, it was unlikely that defendant would testify, in light of the incriminating statements he made to police. Hence, “[y]ou take out the defendant and you take out the two defense witnesses, that’s what you’re left with[, the police officer’s story that defendant was the driver]. It would be a pretty short trial.” The record supports the trial court’s finding that Sneed and Christopher’s testimony “ ‘would have been both material and favorable to [defendant’s] defense.’ ” (Martin, supra, 44 Cal.3d at p. 32.)

In sum, the trial court’s conclusion that the prosecution in this case violated defendant’s constitutional right to compulsory process is adequately supported by the record. (See, e.g., People v. Stewart (2004) 33 Cal.4th 425, 472.)
II. Remedy

The People contend that, even if there was a constitutional violation, the trial court’s dismissal of the information was an abuse of discretion because a lesser sanction would have adequately protected defendant’s right to a fair trial.

Specifically, the People assert that the court could have used Sneed’s and Christopher’s preliminary hearing testimony, which would have allowed defendant to present his defense at trial despite the witnesses’ unavailability. In support of this argument they cite Evidence Code section 1291, which provides in relevant part: “(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Cf. People v. Conrad (2006) 145 Cal.App.4th 1175, 1186 [in context of evidence lost due to prosecutorial delay, trial court abused its discretion when it dismissed action even though an intermediate remedy was available that would have mitigated prejudice resulting from delay]; cf. People v. Woods (2004) 120 Cal.App.4th 929, 937-939 [in affirming judgment of conviction following jury trial, appellate court held that defendant could not prove testimony of witnesses made unavailable due to prosecutorial misconduct was material since all of witness’ proposed testimony was presented to jury in other ways].)

We conclude that the People are precluded from arguing that the court’s dismissal of the information constituted an abuse of discretion in the circumstances of this case due to their active involvement in bringing about the dismissal. Their refusal to stipulate to the admissibility of the preliminary hearing transcript at trial invited the alleged error of which they now complain. (See, e.g., People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 [“The doctrine of invited error applies to estop a party from asserting an error when ‘his own conduct induces the commission of error’ ”].)

Moreover, even if the People’s refusal to stipulate did not technically constitute invited error, they have forfeited the issue on appeal by failing to raise it in the trial court. (See, e.g., People v. Saunders (1993) 5 Cal.4th 580, 590 [“ ‘ “[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial” ’ ”].) The prosecutor made a tactical decision at the hearing on the motion to dismiss to, in essence, “object” to the admissibility of the preliminary hearing transcript at trial by refusing to stipulate to its admission, thereby preserving its right to appeal the trial court’s substantive ruling and the consequent dismissal. It would be eminently unfair to permit the People to now argue on appeal that the court abused its discretion in refusing to let the case go forward using the preliminary hearing transcript after they refused to stipulate to the preliminary hearing testimony’s admission, and then failed to argue to the trial court that it was nonetheless admissible under Evidence Code section 1291, subdivision (a)(2). (Cf., e.g., People v. Miller, supra, 146 Cal.App.4th at p. 551 [where prosecution could have pursued two arguments simultaneously in trial court, but chose not to do so, “[f]airness dictates the prosecution accept the consequences of its decision”]; People v. Middleton (2005) 131 Cal.App.4th 732, 737, fn. 2, quoting Steagald v. United States (1981) 451 U.S. 204, 209 [“the prosecution may lose the opportunity to challenge a defendant’s standing to appeal ‘when it has acquiesced in contrary findings by [the trial court] or when it has failed to raise such questions in a timely fashion during the litigation’ ”].)

We therefore conclude that the People’s actions in the trial court preclude them from now arguing that the trial court’s decision to dismiss the information in this case constituted an abuse of discretion.

DISPOSITION

The trial court’s order dismissing the information in this matter is affirmed. The Clerk/Administrator of this Court is directed to forward a copy of this opinion to the California State Bar for review and further proceeding, if appropriate.


_________________________
Kline, P.J.

We concur:

_________________________
Haerle, J.

_________________________
Lambden, J.

These facts are taken from the testimony presented at the preliminary hearing, held on August 12, 2009.

Hynes later found a six- or twelve-pack of beer and a pack of cigarettes in the causeway. Miranda v. Arizona (1966) 384 U.S. 436.

For example, in his questioning of both witnesses, Cox falsely told Sneed and hinted to Christopher that the car, with defendant driving, had been captured on videotape by a surveillance camera. He also told them that they could mitigate how much trouble they were in by admitting that defendant was driving.

People v. Ramey (1976) 16 Cal.3d 263; now codified at Penal Code section 817. When there is probable cause to arrest an individual, police may obtain a Ramey warrant to arrest that person in his or her home before criminal charges are filed. (See, e.g., (Goodwin v. Superior Court (2001) 90 Cal.App.4th 215, 218.) As the trial court noted, such a procedure is used infrequently, primarily in situations in which it is critical to arrest a suspect immediately.

Deputy District Attorney Ben McLaughlin, who appeared on behalf of the District Attorney’s Office at the hearing on the motion to dismiss, stated at the hearing and in his written opposition to the motion that, following the preliminary hearing, Deputy District Attorney Randy Mailman listened to the recording of defendant’s statements to the arresting officers, and “acted within her purview as a deputy district attorney to have charges investigated that she thought were sustainable. She received information pursuant to the investigation. The D.A.’s Office acted on that information.”

In ruling that dismissal of the charges was necessary, the court stated that it did not like this result because, if defendant had in fact been driving while under the influence, he should be punished for it. It also commented: “And it’s also the case that the witnesses here that we’re talking about very well may have committed perjury. There’s evidence to suggest that that’s true. And what’s gonna happen in those cases, I don’t know. But the situation is that the law has to apply equally no matter what kind of a case it is. . . .”

The parties seem uncertain about the applicable standard of review for a claim alleging violation of the right to compulsory process. While the cases generally do not explicitly discuss the standard of review, most appear to be applying the substantial evidence standard. (See, e.g., People v. Stewart (2004) 33 Cal.4th 425, 472 [“We find the trial court’s conclusions adequately supported by the record”].) We adhere to that approach in this opinion, although we also conclude that the result would be the same utilizing either the substantial evidence or abuse of discretion standard of review.

The People do not argue that the causation element was not satisfied in this case, and we agree with their implicit admission that the causation element was in fact satisfied. (See Williams, supra, 7 Cal.4th at p. 603.)

The court also rejected the claim of prosecutorial misconduct as to three other witnesses who invoked their Fifth amendment rights at the petitioner’s evidentiary hearing. The court found that the petitioner had not established misconduct since there was no evidence that the indictments of the other two witnesses (see text, ante) “were unnecessary to the performance of the prosecution’s duties.” (Williams, supra, 7 Cal.4th at p. 607.) Contrary to the People’s interpretation, the court’s conclusion simply reflects, in light of the fact that the indictments of the other two witnesses did not constitute prosecutorial misconduct, that any intimidation other potential witnesses felt could not constitute prosecutorial misconduct based on those indictments.

Indeed, it would seem that if the Williams court believed that a defense witness’s perjury arrest or indictment prior to testifying at a defendant’s trial could never constitute prosecutorial misconduct, it would not have needed to go through the analysis it did before concluding that there had been no interference with the defendant’s compulsory process rights under the particular facts of the case.

The Martin court observed that it had come to the same conclusion as the Fourth Circuit Court of Appeals in Bray v. Peyton (4th Cir. 1970) 429 F.2d 500, 501, which held that the prosecution committed misconduct when it arrested a defense witness during trial, before he had testified, finding it “ ‘difficult to imagine’ ” that the incident would not intimidate both the witness who was arrested as well as other defense witnesses. (Martin, supra, 44 Cal.3d at p. 35.)

In People v. Lucas (1995) 12 Cal.4th 415, 458, which distinguished Martin and is similarly distinguishable from the present case, our Supreme Court found that there was no “evidence the witness was arrested in connection with this case or that his arrest on an unrelated warrant was engineered by the prosecutor, or indeed, that the prosecutor even knew about it. Thus the case is not like [Martin] in which we said the prosecutor acted improperly in causing a defense witness to be arrested as he left the stand, in an evident effort to intimidate him and prevent further testimony. [Citation.]”

The People assert that the trial court’s opinion that the extraordinary measures taken in this case reflect a goal of subverting defense testimony does not constitute substantial evidence of improper motives. They then go on to discuss the evidence of perjury supporting their conduct. First, a finding of improper motives is not necessary to our analysis. (See Martin, supra, 44 Cal.3d at p. 31.) Second, neither the trial court nor this court need blind ourselves to the fact that perjury is committed regularly in our courtrooms but, nevertheless, perjury prosecutions are extremely rare. We need not ignore the clear inference that the nearly unheard of conduct by the prosecution in this case was designed to intimidate these witnesses and keep them from testifying for defendant. Third, the evidence of perjury was by no means overwhelming in this case. As the magistrate presiding over the preliminary hearing noted at the conclusion of that hearing: “I think there’s going to be a problem with this case under the burden of reasonable doubt.” Moreover, at the hearing on the motion to dismiss, the trial court noted that the prosecution knew “there were some potential problems with the case because, arguably, [defendant], who is cousins with the witness Christopher Crowl, there was at least some resemblance—that could be arguable as to how much—but they were in the ballpark of looking like each other. And so I think somebody realized this case is in trouble.” Indeed, this was a case of conflicting evidence and witnesses, a classic case for a jury trial. (See Bryant, supra, 157 Cal.App.3d at p. 592, fn. 5, quoting Rosen v. United States (1918) 245 U.S. 467, 471 [discussing “ ‘the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury’ ”].)

In this regard, it is notable that the District Attorney’s Office insisted that Sneed plead guilty under oath, with a statement making clear that defendant was driving.

In their reply brief, the People argue for the first time that the trial court did not find that the action was “ ‘wholly unnecessary’ to the proper performance of the prosecutor’s duties,” and that, therefore, its ruling must have rested on a misunderstanding of the relevant law and cannot be upheld. Even were we to address this tardily raised point (see People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2) [issues raised for first time in reply brief generally will not be considered on appeal]), we do not agree that the court’s failure to use particular language in making its ruling undermines its thoughtful, thorough analysis.

Because we agree with the trial court’s conclusion that prosecutorial misconduct occurred in this case, we are obligated to notify the State Bar of that misconduct with respect to the actions of Deputy District Attorney Ben McLaughlin and/or Deputy District Attorney Randy Mailman. (See Bus. & Prof. Code, § 6086.7, subd. (a)(2) [“[a] court shall notify the State Bar . . . “[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct . . . of an attorney”].) Although subdivision (a)(2) of section 6086.7 states that such notification must be made upon “modification or reversal” of a judgment, we do not interpret the statute as relieving us of our reporting obligation merely because the trial court found the misconduct before we did.

The People assert that the prosecutor could not ethically stipulate to admission of testimony he believed was perjured. They cite People v. Jennings (1999) 70 Cal.App.4th 899, 907, in which the appellate court stated that “a defense attorney has an ethical obligation not to present perjured testimony.” First, we are doubtful that entering into a stipulation in the circumstances of this case would constitute the People’s “presentation” of perjured testimony as discussed in People v. Jennings. Second, there is something unsettling about the People arguing here that in the trial court they could not have ethically agreed to the testimony’s admission at trial while now strenuously arguing that the trial court erred when it dismissed the information rather than finding that same testimony admissible at trial.

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UPDATE: 4/25/11
◼ If Gallegos makes a list of law enforcement officers with ethics problems, does he have to put himself on it? - Humboldt Mirror
◼ link

THE PEOPLE, Plaintiff and Appellant, v. ROCKY CROWL, Defendant and Respondent.
A127221 (Humboldt County Super. Ct. No. CR093710)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the unpublished opinion filed herein on March 29, 2011, be modified as follows:

On page 1, in the caption, the appellate designations for the parties should be reversed, see above and as follows: “The People, Plaintiff and Appellant, vs. Rocky Crowl, Defendant and Respondent.”

On page 6, in the first sentence of the second full paragraph, add the following parenthetical as follows: “The court also considered at the hearing a series of e-mails between Deputy District Attorney Ben McLaughlin (who apparently was the prosecutor assigned to try defendant’s case) and the office of Sneed’s counsel, . . . ”

On page 8, add the following five sentences to the end of footnote 6: “McLaughlin further stated at the hearing, ‘Miss Mailman after reviewing audio tape thought there might be probable cause to suspect perjury had occurred. A warrant was prepared, and a judge reviewed the warrant.’ McLaughlin also stated that, after the interviews with Sneed and Christopher, ‘Mr. Cox prepared a report, submitted the report to [Assistant District Attorney Wes] Keat. Mr. Keat makes the charging decisions. Reports for charges were filed.’ ”

On page 18, footnote 17 should be changed to read as follows: “Because we agree with the trial court’s conclusion that prosecutorial misconduct occurred in this case, we are obligated to notify the State Bar of that misconduct. The record suggests that one or more of the following attorneys from the District Attorney’s Office were involved in the misconduct in question: Deputy District Attorney Ben McLaughlin, Deputy District Attorney Randy Mailman, and/or Assistant District Attorney Wes Keat. However, that will be for the State Bar to determine. (See Bus. & Prof. Code, § 6086.7, subd. (a)(2) [‘[a] court shall notify the State Bar . . . [¶] . . . [¶] . . . [w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct . . . of an attorney’].) Although subdivision (a)(2) of section 6086.7 states that such notification must be made upon ‘modification or reversal’ of a judgment, we do not interpret the statute as relieving us of our reporting obligation merely because the trial court found the misconduct before we did.”

There is no change in the judgment.
Appellant’s petition for rehearing is denied.
Dated: ___________________________
____________________________P.J.

A guilty plea, with a life sentence

◼ Tracey Joleen William gets 25 years in killing of Ezra Sanders - TS - John Driscoll
...Tracey Joleen Williams pleaded guilty to voluntary manslaughter with special allegations of using a firearm during the act, and to first-degree residential robbery while acting in concert with two or more people. The plea agreement with the Humboldt County District Attorney's Office has Williams sentenced to 25 years in state prison....

Last summer, Ruben Anthony Peredia of Eureka and Lukus Larry Mace of Orleans entered guilty pleas to voluntary manslaughter. Peredia was sentenced to 13 years and four months in prison. Mace made a plea agreement to testify against his codefendants, and he will be sentenced to six years in prison. In January, Jeffrey Alan Burgess of Eureka -- the man believed to have fired the gunshot that killed Sanders -- pleaded guilty to first-degree robbery while acting with two or more people, and discharging a firearm during the commission of a felony. His sentence is 30 years....
”I'm completely comfortable with Ms. Williams' disposition that she will actually serve 20 years,” said Deputy District Attorney Ben McLaughlin after the hearing Monday.

McLaughlin said that the case against Peredia was not as strong as those against Williams and Burgess, especially since the main witness against Peredia was Mace, an accomplice. Testimony of an accomplice alone is not sufficient, he said. McLaughlin also said that the plea agreement with Burgess was a hedge against a trial in which a judge might exclude an important part of a confession, as the court did in Burgess' preliminary hearing.

McLaughlin said that while Williams did not herself kill Sanders, she was able to plead to the manslaughter and firearm charges under case law that allows such a plea as part of an agreement....

One thing done right (and yet another plea bargain)

Another plea deal. Murder to 'first degree robbery.' For the shooter. But at least this time the victim's family was kept apprised. The way it should have been done in the Whitmill/Flores case.

Another defendant in the killing of Ezra Sanders entered a guilty plea in Superior Court on Monday and is looking at a sentence of 30 years in prison.

The Humboldt County District Attorney's Office said Jeffrey Alan Burgess, 39, of Eureka, entered the plea to first degree robbery with special allegations that include acting in concert with two or more persons and personally discharging a firearm during the commission of a felony. Burgess' murder trial was in the jury selection process when he changed his plea.

He will have to serve 25 years of the sentence before being eligible for release, Deputy District Attorney Ben McLaughlin said, adding that 30 years is the largest determinant sentence possible.

McLaughlin said that, throughout settlement talks, he was in close contact with the victim's father, Charles Sanders.

”Every substantive discussion I had with defense counsel, I always checked with Mr. Sanders,” McLaughlin said. “We had an idea of where Mr. Sanders wanted to see the case resolved in terms of years of incarceration, and that's what we tried to accommodate. ... I had always thought that 30 years sounded appropriate for Mr. Burgess, given his age.”

Ruben Anthony Peredia, 32, of Eureka and Lukus Larry Mace, 31, of Orleans, entered guilty pleas in August to voluntary manslaughter. Mace and Peredia face up to six years in prison, but part of Mace's plea agreement requires him to testify against the others.

A fourth defendant, Tracey Joleen Williams, 35, of Eureka, is scheduled to stand trial Jan. 4.

Burgess' sentencing is scheduled for Jan. 12.

Ruben Anthony Peredia, 32, of Eureka and Lukus Larry Mace, 31, of Orleans, entered guilty pleas in August to voluntary manslaughter. Mace and Peredia face up to six years in prison, but part of Mace's plea agreement requires him to testify against the others.

A fourth defendant, Tracey Joleen Williams, 35, of Eureka, is scheduled to stand trial Jan. 4.
Burgess' sentencing is scheduled for Jan. 12.

Sanders was found lying in front of his trailer in the Widow White Creek RV Park in McKinleyville shortly after 1 a.m. Feb. 24. He was found dead of a single gunshot wound to the chest.

Mace's testimony at a preliminary hearing in the case indicated that he and the other three drove to McKinleyville to rob Sanders. Sanders resisted and appeared to be reaching for something inside his trailer. That is when Burgess shot him, Mace testified.

McLaughlin said there were some concerns regarding the admissibility of a confession Burgess gave law enforcement officers before his arrest, as Burgess' defense attorney, Neal Sanders, had argued that Burgess wasn't properly Mirandized during the interview. Much of the confession was thrown out during Burgess' preliminary hearing, and McLaughlin said there was a concern that ruling would have been upheld, or even extended, at trial.

”It would have been tough going,” he said of trying the case without Burgess' confession.

Neal Sanders said his client ultimately opted to take the plea deal because he, one day, hopes to walk out of prison a free man.

”It is a determinant term for him, which means he will actually be able to get out of custody,” said Neal Sanders, adding that would not have been the case if Burgess had been convicted of any degree of murder charges. “Nowadays, people with life sentences don't walk out of prison, ever.”

Gee thanks, Neal. The killer wants to walk out a free man.

none of the men can associate with one another, or wear clothing or patches identifying them as gang members.

◼ Mongols members sentenced for shooting
Four men arrested in connection to the non-fatal shooting of a suspected Hells Angels member in November were sentenced in Humboldt County Superior Court Tuesday afternoon to terms ranging from three years in prison to 180 days in jail.

All four men, three of whom were found to be card carrying members of the Mongols Motorcycle Club, pleaded guilty in a plea agreement offered during their preliminary hearing, after evidence surfaced that the victim -- Robert Thompson -- may have fired first.

Deputy District Attorney Ben McLaughlin said although there are no current plans to charge Thompson as a felon in possession of a firearm, the matter is still under investigation.

The accused gunman in the case, 28-year-old Mongols gang member Eric Gunner Lundin, was sentenced by Judge Dale Reinholtsen to three years in prison for felony charges of assault with a firearm and participating in a criminal street gang.

Lundin's attorney, Glenn Brown, said his client will likely serve “a little over two years.”

Dustin Liebes, a 36-year-old who the prosecution named as the president of the area Mongols chapter, was sentenced to one year in jail with five years probation. Shasta County resident Eric Garcia, 28, was also given a one year jail sentence with five years probation. Both men had pleaded guilty to participation in a criminal street gang, and both were granted 110 days time served.

Brad Miller, 26, was sentenced to 180 days in jail, with 110 days credit.

The prosecution alleged Miller -- who was not part of the gang -- was a prospective member. Miller pleaded guilty to being an accessory to a felony after the fact, but denied attempting to gain entry to the gang.

In addition to various fines, Reinholtsen stipulated that none of the men can associate with one another, or wear clothing or patches identifying them as gang members....

UPDATE:
☛ TS Four arrests follow shooting outside bar
☛ Merced Sun Star Robert Thompson shot outside Eureka bar
☛ Modesto Bee Detectives kept an eye on Thompson because of his Hells Angels membership
☛ The AgingRebel.com Biker Motive Alleged In Shooting
☛ TS Hells Angel shot Friday was cleared of murdering girls in Merced
☛ TS Four arrests follow shooting outside bar
☛ Merced Sun Star Robert Thompson shot outside Eureka bar
☛ TS Prelim begins for alleged Mongols shooters
☛ TS Expert links shooting suspects to Mongols motorcycle gang
☛ TS Suspected Mongols accept plea agreement

12/18/2008 - Members of the Mongols biker gang implicated in the shooting of a suspected Hells Angel in early November have all accepted plea agreements offered by the Humboldt County district attorney.

Dowdy - Mistrial Declared

☛ TS Dowdy acquitted of murder
Thomas Dowdy Jr. was acquitted of second-degree murder in the Christmas Eve shooting death of David Steed on Thursday, but the court declared a mistrial on the lesser manslaughter charge due to a hung jury.

The foreman told the court the jury was deadlocked 11-1 on the manslaughter charge after voting on the matter four or five times during more than three days of deliberation. Sources told the Times-Standard the 11 jurors voted not guilty on the manslaughter charge, but prosecutor Ben McLaughlin and Dowdy's attorney, Blair Angus, would not comment on which way the vote fell.

McLaughlin did say that the one opposing juror refused to engage in deliberations.

”My understanding is that when they got to the manslaughter, this juror had his or her mind made up and would not deliberate,” McLaughlin said.

☛ ER Dowdy’s future remains unclear after mistrial declared
Deputy District Attorney Ben McLaughlin said a decision will be made next week on how to proceed with the case against Dowdy, who’s accused of shooting and killing David Steed after a confrontation over stolen firewood escalated.

The Humboldt County District Attorney’s Office has three options — dismiss the case, negotiate a plea deal or proceed with a new manslaughter trial. “A new trial is highly unlikely, but that decision hasn’t been made yet,” McLaughlin said. For now, Dowdy remains in custody at the Humboldt County jail.
☛ TS Jury: Dowdy not guilty of murder

Fortuna resident Thomas Dowdy Jr. was found not guilty of second-degree murder this morning in the Christmas Eve shooting death of David Steed.

The jury was hung 11 to 1 on a charge of manslaughter. It was not clear how the vote was divided.

The jury deliberated for three days before reaching its verdict after 11 a.m.

☛ ER Thomas Dowdy Jr. not guilty of first degree murder
☛ ER Mistrial declared in Dowdy manslaughter case

A Humboldt County Superior Court judge declared a mistrial Thursday in the voluntary manslaughter case against 22-year-old Thomas Dowdy Jr. Before doing so, the jury acquitted Dowdy of the second-degree murder charge. The jury foreman stated the jurors voted at least four to five times on whether to convict Dowdy of voluntary manslaughter, and the vote was consistently 11-1. It's unclear which side was in favor of convicting the Fortuna man.

Dowdy, who remains in the Humboldt County jail, has a new pre-trial scheduled for August 12. Deputy District Attorney Ben McLaughlin said one juror apparently wasn't deliberating and when the voluntary manslaughter charge was discussed, the juror's mind was already made up.

Update: ☛ ER Dowdy pleads guilty to misdemeanor involuntary manslaughter 7/29/08

Thomas Dowdy Jr. has been released from the Humboldt County jail or will be released later today with time served. He has been in custody since late January for the Christmas eve 2007 murder of Fortuna resident David Steed.

The jury found him not guilty last week of second-degree murder but was deadlocked regarding the voluntary manslaughter charge. The judge declared a mistrial last week because of that deadlock.

The family of Steed was visibly upset in court today.

☛ TS Dowdy to be released today

Thomas Dowdy Jr. will be released from the Humboldt County jail today after entering a plea of no contest to manslaughter at 2 p.m.

For the misdemeanor crime, Dowdy was sentenced to time already served without probation, and is to be discharged after he is processed at the jail, where he serves 190 days since January, following the Christmas Eve 2007 shooting death of Fortuna resident David Steed.

During his trial, Dowdy faced second-degree murder charges after fatally shooting Steed twice -- in the back and elbow.
After two weeks of testimony, the jury found him not guilty of second-degree murder, but deadlocked on the manslaughter charge, 11-1 in favor of Dowdy's innocence.

The Dowdy Steed Fortuna Christmas Murder case

☛ ER Investigation under way in death of Fortuna man on Christmas Eve 12/25/2007
☛ TS Officers sorting through incidents that led to Fortuna man's death 12/26/2007
☛ ER Questions remain in Fortuna homicide; probe continues 12/26/2007
☛ TS Preliminary results point to gunshot wounds as cause of death 12/29/2007
☛ TS Week in Review 12/30/2007
☛ TS Chief says charges will be filed in Fortuna shooting 1/01/2008
☛ ER Arrest warrant to be issued in Fortuna homicide 1/2/2008
☛ ER FPD requests arrest warrant for shooter in homicide 1/12/2008
☛ ER Christmas Eve killing leaves one man on suspicion of homicide 1/23/2008
☛ ER Fortuna man charged for involvement in Christmas Eve homicide 1/24/2008
☛ TS Fortuna suspect surrenders in Christmas Eve death 1/24/2008
☛ TS Shooting suspect pleads not guilty 1/26/2008
☛ TS Fortuna man pleads not guilty in fatal Christmas shooting 4/25/2008
☛ ER Christmas Eve shooting death case heads to trial 4/29/2008
☛ TS Judge denies motion to dismiss Dowdy case 6/14/2008
☛ ER Jury selection in Christmas Eve homicide to start Monday 6/14/2008
☛ link
☛ TS Fortuna Christmas murder trial begins 7/08/2008
☛ ER Justifiable self-defense argued 7/7/2008
☛ ER Witness testimony continues 7/8/2008
☛ TS Evan Steed testifies about father's death in Fortuna murder trial 7/09/2008
☛ ER Fortuna murder case continues 7/9/2008
☛ TS Scene of shooting described in murder trial's third day 7/10/2008
☛ ER Steed died from gunshot, specialist says 7/10/2008
☛ TS Forensic pathologist testifies in Dowdy trial 7/11/2008
☛ TS Jurors hear Dowdy's post-shooting interviews 7/12/2008
☛ ER Dowdy admits shooting man, but didn’t intend to kill 7/12/2008
☛ ER Department of Justice witnesses to testify today 7/14/2008
☛ TS Witnesses: Testimony in Dowdy trial differs from statements 7/15/2008
☛ ER Dowdy says he wasn't shooting to kill David Steed 7/16/2008
☛ ER Testimony in Christmas Eve murder trial to conclude Thursday, jury to start deliberations Monday 7/16/2008
☛ TS Dowdy's former friend testifies in shooting trial 7/16/2008

A former friend and roommate of Thomas Dowdy Jr. testified in his second-degree murder trial Tuesday that Dowdy acted on his own volition when he allegedly stole a trailer filled with firewood, sparking a confrontation that ended in the fatal Christmas Eve shooting of David Steed.
Amber Herman, 20, testified she spoke with Dowdy days before the Dec. 24, 2007 shooting about a trailer filled with firewood, which Steed had placed for sale on a roadside near his residence. Herman told jurors she asked Dowdy not to steal the trailer, but “he just sorta snickered and said, 'Don't tell my parents.'”
In interviews taken after the shooting, 22-year-old Dowdy told police three weeks before the shooting Herman had asked him to steal the firewood for her mother, who had recently run out of wood. When he returned with the wood, Dowdy told police Herman had changed her mind, and “acted like she was joking.”
Herman testified she never told Dowdy her mother needed the wood, and the trailer belonged to her father, Kenneth Hughes -- a close friend of Steed's -- who then notified Steed of the theft.

☛ TS Dowdy takes the stand in Fortuna murder trial 7/17/2008
☛ TS Dowdy testifies in Christmas Eve murder trial 7/18/2008
☛ ER Closing arguments in Christmas Eve murder trial slated for Monday 7/18/2008
☛ ER Final arguments made in Fortuna Christmas Eve murder 7/21/08
☛ TS Dowdy case sent to jurors 7/22/2008
☛ TS Dowdy acquitted of murder
Thomas Dowdy Jr. was acquitted of second-degree murder in the Christmas Eve shooting death of David Steed on Thursday, but the court declared a mistrial on the lesser manslaughter charge due to a hung jury.

The foreman told the court the jury was deadlocked 11-1 on the manslaughter charge after voting on the matter four or five times during more than three days of deliberation. Sources told the Times-Standard the 11 jurors voted not guilty on the manslaughter charge, but prosecutor Ben McLaughlin and Dowdy's attorney, Blair Angus, would not comment on which way the vote fell.

McLaughlin did say that the one opposing juror refused to engage in deliberations.

”My understanding is that when they got to the manslaughter, this juror had his or her mind made up and would not deliberate,” McLaughlin said.

☛ ER Dowdy’s future remains unclear after mistrial declared

Update: ☛ ER Dowdy pleads guilty to misdemeanor involuntary manslaughter 7/29/08

Thomas Dowdy Jr. has been released from the Humboldt County jail or will be released later today with time served. He has been in custody since late January for the Christmas eve 2007 murder of Fortuna resident David Steed.

The jury found him not guilty last week of second-degree murder but was deadlocked regarding the voluntary manslaughter charge. The judge declared a mistrial last week because of that deadlock.

The family of Steed was visibly upset in court today.

☛ TS Dowdy to be released today

Thomas Dowdy Jr. will be released from the Humboldt County jail today after entering a plea of no contest to manslaughter at 2 p.m.

For the misdemeanor crime, Dowdy was sentenced to time already served without probation, and is to be discharged after he is processed at the jail, where he serves 190 days since January, following the Christmas Eve 2007 shooting death of Fortuna resident David Steed.

During his trial, Dowdy faced second-degree murder charges after fatally shooting Steed twice -- in the back and elbow.
After two weeks of testimony, the jury found him not guilty of second-degree murder, but deadlocked on the manslaughter charge, 11-1 in favor of Dowdy's innocence.

☛ TS Dowdy: No contest to manslaughter 7/30/08
☛ ER Fortuna Christmas Eve murder suspect freed 7/30/08