Eye on the Courts: Perjury for Some

Three weeks today, a Yolo County jury acquitted Regina Roxanne Perez of perjury after she had been a prospective juror in the 2011-12 Marco Topete death penalty case.  Ms. Perez and her attorney, Alin Cintean, addressed the Vanguard Court Watch Council last Sunday in front of at least 50 community members at the Davis Public Library.

The case itself is relatively simple.  The prosecution, led by Deputy DA Sulaiman Tokhi, argued that Ms. Perez had lied under oath when she testified that she did not speak to her imprisoned son about that case. She was initially called for jury duty on January 11, 2011, as one of hundreds that potentially could be empaneled as jurors in the death penalty case, which would go on for much of the next year before jurors reached a verdict of guilty and ultimately recommended a sentence of death.

Critical to the prosecution’s case was a 20-second portion of a 15-minute phone call in which Ms. Perez was recorded telling her son that she had jury duty the following day.

Deputy DA Sulaiman Tokhi claimed that when the son says, “Oh yeah you have to go back on the 22nd, I forgot about that,” that that indicated she had discussed the case with him.  Ms. Perez also told her son, Michael Perez, that his sister had said she would the defense’s dream juror and the prosecution’s worse nightmare.

So, clearly, she had informed her family that she had jury duty, but there was no evidence that she actually discussed the case.

At the Court Watch Council meeting, Mr. Cintean stated that the reason he made a big deal out of their cutting out portions of the recording is that it took things out of context, it dehumanized Ms. Perez’s experience, and it presented an inaccurate portrayal to the jury.

One of the interesting aspects of the case is that the DA’s office, even at the time, did not simply use their peremptory challenges to excuse Ms. Perez.  Instead, then-investigator Bruce Naliboff came forward as a witness during jury selection and played the recorded conversation.  At that point, Judge Richardson moved to remove her for cause.

It would not be for another year that Mr. Naliboff would direct the Yolo County Gang Task Force to arrest Regina Perez at the Walgreens Distribution Center, where she has worked for the last 18 years.

Ms. Perez would describe at the meeting her humiliation, being arrested at work.

“I was completely embarrassed and had no idea what was going on” said Ms. Perez, who was arrested in front of her coworkers.   Why they could not have arrested her on this relatively minor and non-dangerous charge at home, why they needed to use the Yolo County Gang Task for it at all, remains a mystery.

Mr. Cintean offered some speculation.  It had to do with the fact that Michael Perez had his plea agreement for the 2001 murder charge reversed on a technicality, as the defense attorney had failed to properly advise him.

Mr. Cintean believes that the DA’s office arrested his mother and threatened her with a felony that would prevent her from visiting her son ever again, in hopes of coercing Mr. Perez to take a new deal.

He refused to cooperate, however, and once Ms. Perez was acquitted, the DA’s office agreed to a more generous plea agreement with Mr. Perez.

Mr. Perez pled no contest to second degree murder and a reduced enhancement for personal use of a firearm.  He would receive from Judge Mock an 18-year to life sentence.  With his time in custody since 2001, he will be eligible for parole in the relatively near future.

Mr. Perez’ case was part of what was originally a 15-defendant case.  Retired Deputy DA Nick Pohl, who was one of the prosecutors on the original case, came back from retirement to institute the plea agreement.  He told the court that the DA’s office offered this plea agreement because Mr. Perez had cooperated in the 2009 prosecution of Faustino Romero, who would receive two life sentences plus 46 years for his role in the killings.

That is the irony of this all – the DA’s office played hardball with a guy who helped them secure the conviction of Mr. Romero, responsible for killing two people.

But perhaps the worst part of this story is the selective prosecution of Ms. Perez, and perhaps Mr. Cintean is correct in saying the DA’s office was trying to leverage Mr. Perez into taking a harsher sentence after the appellate court threw out his initial plea agreement.

Ms. Perez was embarrassed and humiliated in front of her colleagues, but what is pretty telling is, despite that episode, she kept her job with Wallgreens and even had her boss testify as a character witness.

Nevertheless, juxtapose the treatment of Ms. Perez for a perjury charge that resulted in no harm whatsoever to anyone, versus the treatment of Deputy Del Castillo who lied on the stand of a preliminary hearing in early June.

Judge Rosenberg said he was “very troubled by the deputy’s actions,” and granted the motion to suppress.

“The purpose of the exclusionary rule is to deter law enforcement conduct that violates the Constitution,” he said.

The initial traffic stop in that case, he said, was justified despite the relatively minor traffic violation involved.

The court noted that the passenger had indicated that she was on probation but turned out to be mistaken.  He said that is not “the real concern of the court here.”  He continued to note that the passenger was completely cooperative with the deputy, as was the defendant.

However, once the defendant was out of the car, the court found that the pat search “was not undertaken with sufficient cause.”

“There’s no basis for a pat search unless there’s something which would indicate that the defendant was dangerous or armed. There is nothing indicated in the video of that nature,” Judge Rosenberg argued.

“What is really troublesome to the Court is the incident report where the deputy states, quote, I asked if I could search him, ‘him’ being the defendant, for weapons, and he said, quote, yes, end of quote,” the judge continued.  However the driver “never said yes.  There was no affirmation.  There was no consent given.”

The defendant earlier said he did not consent to a search of the vehicle.

“What is really troublesome to the Court is the deputy’s misrepresentation in the incident report, which brings into question the deputy’s credibility from the get-go,” Judge David Rosenberg said as he granted the motion to suppress.

The DA’s office, following the Sacramento Bee article, said they were investigating the matter.  However, to date no charges have been filed against Deputy Del Castillo.  Mr. Castillo’s erroneous testimony actually threatened the liberty of the defendant, and it resulted in time in custody and the loss of liberty.

There were no such repercussions for Ms. Perez’s testimony, even had a jury found it to be perjurous.  If the DA’s office during the Topete trial had seen that she could not be fair – as she stated on the stand under oath – they had every right to use their peremptory challenge (they had plenty of them in a trial so large).

Instead, they chose to use public resources, first during jury selection and then in prosecuting Ms. Perez, that do not seem warranted.

In the meantime, officers, found by the court to be deceptive, go free.  Is that really the message that we want to send in this community?

—David M. Greenwald reporting

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