The following is the full ruling by Judge Janene Beronio given at the Yolo County Courthouse on May 16, 2025.
On June 25, 2009, a jury convicted Ajay Dev of 14 counts—7 of committing lewd and lascivious acts upon a child, counts of penetration of a genital opening with a foreign object, 49 counts of penetration of a genital opening with a foreign object, 10 upon a person under 16 years of age by a person over the age of years, counts of rape by force or threat, 9 counts of penetration of a genital opening with a foreign object upon a person under 18 years of age, and 3 counts of dissuading a witness.
On August 7, 2009, the Court sentenced him to a term of 378 years and 4 months in state prison. The defendant appealed this conviction to the Third District Court of Appeal. He also filed a petition for rehearing in the appellate court and a petition for review in the California Supreme Court, both of which were denied.
On July 13, 2018, Mr. Dev petitioned this court for a writ of habeas corpus. The first witness testified on July 26, 2019.
This evidentiary hearing faced many hurdles, including several changes in counsel for both parties, which caused delay, the COVID-19 pandemic, which substantially slowed the case, the difficulty of obtaining competent interpreters to translate, and having to tape conversations interpreted after the evidentiary hearing started, the difficulty of translating Nepali into English, and the ability to obtain testimony from witnesses in Nepal who could not travel to the United States. Today, almost seven years after this writ was filed, it’s time for a decision.
When the Court reviews a habeas corpus petition, all presumptions favor the truth, accuracy, and fairness of the original conviction and sentence. Petitioner’s burden of proof is by a preponderance of the evidence. A habeas corpus proceeding is not a trial of guilt or innocence, and if the Court grants a habeas petition, it does not constitute an acquittal, rather, a successful habeas corpus petition contemplates and virtually always permits a retrial.
The case against the petitioner was based almost entirely on the credibility of the complaining witness, Sapna Dev. Sapna testified that she was sexually assaulted by the petitioner numerous times a week from 1999 until 2003 or 2004. Petitioner’s defense was none of what Sapna alleged was true.
The defense asserted that Mr. Dev had never been inappropriate with her and that Sapna was lying because Mr. and Mrs. Dev were overly controlling and Mr. Dev had caused Sapna’s boyfriend to break up with her and she was very angry at them. Also, Sapna wanted to remain in the United States, and being a victim of sexual assault would provide her with the means to remain in America.
Prior to these charges, Mr. Dev had no criminal record. In addition, throughout the proceedings, he has steadfastly maintained his innocence. At this point, he has served almost 16 years in state prison.
Petitioner sets forth three reasons why this writ should be granted:
First, that trial counsel rendered ineffective assistance of counsel in failing to investigate and present readily available evidence directly supporting the defense that counsel himself had advanced that Sapna was lying. Petitioner claims that counsel failed to accurately represent him by not presenting two types of evidence: First, evidence which counsel was aware of and tried to introduce but failed to properly authenticate; and, second, evidence of which counsel was unaware because of a failure to investigate.
Second, if counsel’s failure to investigate and present the evidence was not a result of any lack of diligence, then the evidence is new evidence. And if the jury had heard that evidence, petitioner alleges that the jury would more likely than not have reached a different verdict.
And finally, the petitioner contends that in analysis of a combination of those two errors along with several legal errors raised on appeal would show that the petitioner’s right to a fair trial has been violated under both federal and state law.
Starting with Number 1: Ineffective assistance of counsel.
Evidence at the habeas hearing consisted of failure to properly authenticate a judgment from the court in Nepal, failure to properly authenticate an email sent from Mr. Dev’s work computer, failure to enhance the audio of the pretext call, and failure to properly investigate the case.
With regard to counsel’s failure to properly authenticate the judgment from the court in Nepal: In October of 1998, petitioner and his wife, Peggy, went to Nepal for six weeks. While they were there, they proposed adopting Sapna to provide her with education and career opportunities. In the United States, adoption was only possible if completed before Sapna turned 16 years old. If Sapna had been adopted after age 16, she would not qualify for derivative U.S. citizenship.
On January 23, 1999, Sapna came to the United States to live with petitioner and Peggy. Her Nepal passport had a date of birth of January 5, 1984, making her 15 years old. The adoption was finalized on December 6, 1999, which was one month before she turned 16 if her date of birth was actually January 5, 1984.
When Sapna was in Nepal in the summer of 2004, she was arrested, detained in jail, and tried in Nepal for having an altered birth date on her passport. Petitioner’s cousin signed the Complaint that led to her arrest. The court in Nepal determined that Sapna’s correct birth date was April 28, 1983, and that Sapna had used a false birth date on her passport application. Sapna’s biological father was also charged.
Counsel attempted to introduce the transcript of that conviction, but the court did not allow that evidence, stating it was not properly authenticated. Without properly authenticated documents, the prosecution was able to assert that the conviction was questionable, that the court in Nepal was corrupt, and that Mr. Dev instigated these charges to prevent Sapna’s return to the United States.
In his closing argument, the prosecutor stated that the 1983 birth date was bogus and the conviction was a bunch of B.S.
In addition, the court told the jury that the actual judgment or decision of the court in Nepal was not before them and they were not to speculate about what the court in Nepal did. The judge stated that there was no evidence, whether it was criminal or civil—there was no evidence of whether there was a finding of fraud or mistake. There was no evidence of anything like that, except there was a result from the court in Nepal that apparently identified one birth date over another.
This court finds that properly authenticated documents certainly could have made a difference in the outcome of petitioner’s criminal case. The Court finds that to be especially true because Sapna was allowed to testify that her birth date was January 5, 1984.
If there had been credible evidence that her birth date was actually April 28, 1983, by way of a certified conviction, several of these charges would be invalid because of the age requirements. Using the birth date determined by the court in Nepal, Sapna turned 16 on April 28, 1999, so at least 12 of the counts would be void had the evidence come in and been believed.
Also, since her biological father was acquitted, entry of the court documents could establish that it was Sapna herself who was found to be dishonest about the birth date. In addition, the evidence at the trial in Nepal also established that Sapna thought the charges were brought over jealousy of her being chosen for adoption, contrary to what she testified at trial.
The Court finds that the failure to properly authenticate the court documents from Nepal was ineffective assistance of counsel.
With regard to counsel’s failure to properly authenticate the email from Mr. Dev’s work computer:
That evidence could have established that Mr. Dev was at work when the pornography was viewed on Dev’s home computer, and therefore he was not viewing it as alleged. While that evidence does go to Sapna’s credibility, the Court does not find it to be significant because the jury acquitted on the pornography charges. Therefore, the Court does not find that failure to properly authenticate the email is ineffective assistance of counsel.
With regard to counsel’s failure to enhance the pretext call:
On January 31, 2004, petitioner emailed Sapna’s boyfriend, Will. He reiterated points from a phone conversation they had had. Petitioner told Will that he needed to respect Sapna’s Nepali heritage.
On February 1, 2004, Will broke up with Sapna and Sapna was furious. She emailed the petitioner saying, and I’m quoting, “Hello, Ajay Dev. What the hell do you want from me? What do you know about our culture? First, learn yourself, and then teach others. I have nothing to do with you anymore. Stay away from my life. Leave me alone. And for a change, focus in your own life and not mine,” end quote.
The next day, February 2, 2004, Sapna went to the police.
She accused petitioner of having sex with her two or three times a week from the time she was 15 until she moved out of the Dev’s house. On February 3, 2004, Sapna was interviewed by a detective from the Davis Police Department, and then on February 4, 2004, that same detective set up a pretext telephone call to petitioner.
The conversation is partly in English and partly in Nepali. Nowhere in the English portion of the call did petitioner ever admit he engaged in inappropriate conduct with Sapna. However, there are two places where the parties are speaking in Nepali that the prosecution argued are admissions by the petitioner. There was a major dispute over those translations at the trial. The interpreters could not hear what was being said and/or could not accurately translate.
Further, Sapna herself was allowed to testify as to her translation of certain Nepali terms. A recording of the pretext call was played at the trial. At the habeas hearing, petitioner established that at the time of the trial the pretext call could have been enhanced, and if it had been enhanced, portions of the recordings that had been unintelligible could have been heard.
There was no evidence that counsel for the defendant attempted to enhance the recordings. There were several translations done all based on the enhanced recording. The pretext call was a significant part of the prosecution’s case. The prosecution focused on that call during his closing argument at trial.
The Court finds that the recording of the pretext — the Court finds that if the recording of the pretext call had been enhanced, it would have improved the quality of the evidence.
During the majority of the pretext conversation, Mr. Dev is denying any inappropriate conduct. He urges Sapna to contact the police, and again and again denies any inappropriate conduct.
As I stated, there were only two very brief exchanges in the unenhanced audio recording where the prosecution was able to allege that Mr. Dev confessed to the crimes, yet those were places where the interpreters could not hear what was being said and/or not accurately translate.
In addition, during the call, Sapna appeared to be frustrated because petitioner would not admit the allegations. And finally, at the end of the call she stated, and I quote, “I just wanted to ask you about things, but you aren’t. Definitely you are not telling me anything about this. I am gonna go,” end quote. It seems that at the end of that call, Sapna knew there were no admissions on the part of Mr. Dev.
Now that the tape has been enhanced, instead of, “You had sex with me when you were 18,” as translated by Sapna, the new interpretation is, “You came with me after you were 18.” The new translation based on the enhanced audio shows that Sapna provided false testimony when she testified that Mr. Dev had stated that he had sex with her. The difference in translation undermines the credibility of Sapna, which is the key to this entire case.
Failure to enhance the audio derived the petitioner — I’m sorry, deprived the petitioner of a fair trial. The Court finds that failure to enhance the audio of the pretext call was ineffective assistance of counsel.
Did trial counsel fail Mr. Dev with regard to the new evidence of Sapna’s statements to individuals in Nepal by failing to properly investigate the case? Habeas counsel presented four witnesses who testified about statements Sapna made to them in 2003 and 2004. Would a proper investigation have found those witnesses? Was failure to find those witnesses ineffective assistance of counsel? Maybe. But the Court has insufficient information regarding the investigation into those possible witnesses to make that determination.
Whether or not it was ineffective assistance of counsel, the second basis for the writ is assuming that it was not ineffective assistance of counsel, the new evidence should still come in if it would cause the jury to more likely than not come to a different verdict.
At the evidentiary hearing, petitioner called Sangita Dev, Dinesh Deo, Bhabendra Yadav, and Shweta Deo, all of whom testified that at some point Sapna had told each of them that she had lied about the sexual accusations she had made against petitioner and/or that she was angry at petitioner and wanted him to go to jail like he did to her. Respondent argues that all of this new evidence is fabricated by Mr. Dev based on Facebook evidence and prison phone calls presented at the 2 hearing. There was Facebook evidence regarding a threat or extortion message from Sapna’s sister sent to Sanjay Dev, Mr. Dev’s brother. That message is important since all the new evidence came to light after Sangita Dev, Sanjay’s wife, brought her information to the attention of her husband based on viewing that message. And then all the other statements came forward after that.
However, based on the evidence presented, the Court was not able to determine whether or not that message was sent from Sapna’s sister. The evidence did not establish who or where that message actually came from.
With regard to the prison calls, the respondent presented transcripts of conversations from the state prison where Mr. Dev is speaking to members of his family. Respondent asserts that these calls show that Mr. Dev and his family members are fabricating evidence for the habeas hearing. Unfortunately, the language barrier really is a barrier because Nepali doesn’t translate well into English. The prison phone calls like the pretext call are subject to translation that quite often is difficult to follow. Sometimes the conversations seem like they’re going over the truth and discussing what needs to be done, and other times it does seem like they’re fabricating evidence.
Another possibility is that Mr. Dev has been in prison for 16 years for crimes he did not commit, and the conversations arise as the parties try to figure out how to deal with the American justice system that they perceive has failed them.
In reviewing these calls, the Court is unable to hear the individuals speak, but must rely on a written translation of the conversation. Many times the dialogue does not make sense and is not in sentence that would be used in normal conversation in English. In addition, it’s a transcript, so the Court can’t listen to the inflection of the voices. The same sentence can have a totally opposite meaning depending on the tone of the voice.
While I was given the opportunity to hear portions of the tape, it was in no way helpful since it was all in a foreign language. The Court is not convinced that these conversations should discount the four witnesses proffered by petitioner.
Since the Court is unconvinced by both the Facebook evidence and the prison calls, each witness’s credibility as well as the value of his or her testimony will be evaluated on a witness-by-witness basis.
Penal Code Section 1473(b)(3)(a) provides that a petitioner is entitled to a habeas corpus relief when new evidence exists that is credible material presented without substantial delay and of such decisive force and value that it would have more likely than not changed the outcome at trial.
With regard to Sangita’s testimony, regardless whether they were talking about the truth or making up a story, Sangita lost her credibility when she testified that she had never spoken with petitioner about her testimony. That leaves three other witnesses.
Dinesh Deo grew up in Nepal and immigrated to the United States. He knew Sapna in Nepal and ended up working with her at the Rite Aid in Woodland in 2006, and they often had lunch together.
In 2006, he asked her about the passport fraud case because he wondered how she was able to come to the United States. He testified that Sapna told him that she blamed petitioner for the fraud case and for being in jail. On two occasions, Sapna told Mr. Deo that petitioner had put her in jail and she was doing the same thing to him. He testified that Sapna never told him if petitioner did or did not rape her. He also testified that he never told anyone about the conversation with Sapna even though — he also testified that he never told anyone about his conversation with Sapna even though he knew petitioner was being tried for rape because he knew that nothing had happened.
The Court found Mr. Deo to be credible but did not find that his testimony would have been very significant since Sapna never told him that Mr. Dev didn’t commit the offenses, only that she wanted to send him to jail like he did to her. It perhaps provides a motive for reinstating the charges, but it does not help with regard to the authenticity of the underlying charges.
Bhabendra Yadav was the headmaster at a school in Nepal and a good friend of Sapna’s grandmother. He testified at the evidentiary hearing that when he spoke with Sapna in 2003, she highly praised Ajay, and said he was a good father. In a later conversation with Sapna in 2004, in response to a question posed to Sapna by her grandmother, Sapna said that the petitioner had never sexually assaulted her.
Yadav went on to testify that Sapna explained that she had accused the petitioner of sexual assault because petitioner wanted her to maintain her Nepali culture while living in the United States.
Yadav also testified that in a later conversation, Sapna admitted that she renewed the charges against petitioner because she was very angry at him and was determined to return to the United States and needed to use the criminal charges to do that.
Sapna told him that she would get back to the United States and she would lie to do it.
Respondent argues that since Sanjay Dev, Mr. Dev’s older brother, paid for his trip to America to testify at the habeas hearing as well as he paid for a side trip to Las Vegas to visit a friend, that Yadav’s testimony is tainted. The Court did not find that his testimony should be distrusted because the family of petitioner paid for his transportation.
The Court found Mr. Yadav to be credible. This testimony was significant, relative, and relevant, and not cumulative, in that there was evidence introduced — that there was no evidence introduced at trial that Sapna ever admitted to fabricating allegations against the petitioner. Further, this evidence is new evidence that shows that Sapna provided false testimony at the trial. Mr. Bhabendra’s testimony directly goes to Sapna’s credibility, which was the heart of the prosecution’s case.
Shweta Deo testified from Nepal over Zoom. Respondent urges the Court to disregard her testimony since she was in a foreign country and therefore could not be under oath. The parties stipulated to allowing her to testify from Nepal over Zoom. She did take an oath, so the Court will consider her testimony.
Shweta testified that in 2003, the petitioner, Maduri Deo, and Sapna came to her home in Nepal to visit. During that visit, Sapna told Shweta that she was happy with the Devs and that they were treating her like parents would. She told her that she was very happy in the United States, that she could drive a car, go to college, use the computer, and mingle with friends. They also discussed the differences in cultures between the United States and Nepal, and Sapna liked the western culture. Sapna told Shweta about her pregnancies and said that she wasn’t sure who the father of the first child was, but the second time she said it was an Indian boy. Sapna also told her that the petitioner wanted to send her back to Nepal again — I’m sorry — petitioner wanted to send her back to Nepal to regain the Nepali culture and finish her studies in Nepal.
Shweta saw Sapna again in 2004. In 2004, Sapna was very angry with the petitioner for making her leave the United States. She was also angry over the passport issue and thought that it was due to the petitioner. Sapna mentioned that petitioner and Peggy had removed her from their will. Shweta testified that Sapna told her about the sexual allegations she had lodged against petitioner, and Sapna said those allegations were untrue.
During Shweta’s testimony, it was very clear that the language barrier was significant. However, the Court did find Shweta Deo to be a credible witness.
Between 1999 and February of 2004, there was no suggestion that petitioner had ever engaged in any sexual acts with Sapna.
During those years, Sapna gave the Devs cards, wrote notes, sent text and email messages to petitioner and Peggy expressing her affection and love and a desire to continue to be part of their lives. When given one-on-one opportunities to tell friends or adults that she had been abused, Sapna never even hinted at any sexual abuse.
Also, Sapna’s accounts of the abuse changed over time.
For example, in her first full interview, she emphatically told the detective from the Davis Police Department that she refused to perform oral copulation because it was disgusting, but at the preliminary hearing and the trial, she testified that oral copulation had occurred multiple times a month for years.
Sapna testified at trial that petitioner had fathered three children that she either aborted or miscarried. She flatly denied having sex with anyone other than the petitioner.
Contrary to her testimony, Sapna told Shweta that she did not know who the father of the first child was, and the father of the second child was an Indian boy.
At trial, there was evidence that Sapna dated an Indian male in late 2002 and 2003. Also, Sapna’s Iranian ex-boyfriend testified that in the fall of 2003, he and Sapna were having sex once a week around the time that she had her third pregnancy scare. There is a glaring lack of explanation for how Sapna only became pregnant within the time frame that aligned with her having sex with her boyfriends. It is perplexing how Sapna never had a pregnancy scare between the ages of 15 and 18, given Sapna’s claim that petitioner raped her two to three times a week, usually without a condom, and she had her first menstrual cycle before arriving in the United States.
The Court finds that Shweta’s testimony is relevant and significant, in that it proves that Sapna provided false testimony at trial. Further, there was no evidence at trial that Sapna admitted that she fabricated the sexual allegations against petitioner, so this new evidence is extremely important and is not cumulative.
In regard to petitioner’s final request for relief, the Court does not need to look at a combination of errors. Based on what I’ve already stated, if defense counsel had properly authenticated the Nepali judgment so it could have been entered into evidence, if defense counsel had enhanced the pretext call, if defense counsel had found Shweta Deo and Bhabendra Yadav, the result of this case could have and most likely would have been different.
The evidence at trial was in no way substantial. Sapna’s testimony was rife with inconsistencies. The District Attorney focused heavily on the pretext call, alleging that Mr. Dev had confessed to the crimes despite the issues with the translation.
Basically, the evidence at trial depending on how one interpreted it was equally as consistent with innocence as it was with guilt. Therefore, any one of the mistakes made at trial could have impacted the outcome of the trial in and of itself.
The criminal conviction in Nepal finding that Sapna’s birth date was in April of ’83 instead of January of ’84 standing alone could have changed the outcome of this trial.
An enhanced recording of the extremely important pretext call standing alone could have changed the outcome of this trial, especially knowing that Sapna fabricated the evidence when she translated the word “sex” when others could not hear it because it was unintelligible. Since others could not hear it, she was free to assign any meaning she chose. Now that it has been enhanced, there is evidence that she lied.
The testimony of Bhabendra Yadav standing alone could have changed the outcome of this trial. Mr. Yadav’s testimony goes directly to Sapna’s credibility.
Finally, the testimony of Shweta standing alone could have changed the outcome of the trial. It attacks Sapna’s credibility, not only with regard to fabricating the testimony about Mr. Dev’s sexual attacks, but it confirms that he did not father any children with her, as well as establishing a motive to go forward with the fabricated charges.
We do still have an issue of timeliness. I viewed the interview Sapna had with the Davis Police Department. I’ve read the preliminary hearing transcript and the trial transcript. I heard the testimony adduced during the habeas hearing, and I reviewed the evidence presented at those hearings. Based on my review of this entire case, I believe that in fact Mr. Dev could be innocent of these charges, and the possibility of actual innocence is sufficient to allow the Court to rule on the merits regardless of any delay.
Therefore, based on the merits of this case, the petition for writ of habeas corpus is granted and the judgment is vacated. Mr. Dev shall immediately be transported to the Yolo County Jail and we will set a bail hearing.
On May 23, 2025, Judge Beronio released Ajay Dev on his own recognizance. He walked out of prison a free man after 16 years.
