Judge dismisses cellphone smuggling case against former deputy sheriff
Prosecutors erred in making the case to the grand jury, judge concludes
A San Mateo County Superior Court
judge on Dec. 1 dismissed two counts of conspiracy brought by the county
against Juan Pablo Lopez, a former Sheriff's Office deputy and a
write-in candidate for sheriff in 2014.
Mr. Lopez, who worked in the county jail, had
pleaded not guilty to a charge of conspiracy with corrections officers
and a gang-affiliated jail inmate to smuggle in two cellphones and
Oxycontin over several months, and to allow the inmate to use the phone
openly in the jail.
Prosecutors subsequently brought charges of
conspiracy, obstruction of justice and gang involvement against Mr.
Lopez. He pleaded not guilty to them all; those charges were later
modified to two counts of conspiracy.
Representing Mr. Lopez, attorneys Tony Serra and
Maria Belyi of the San Francisco-based law firm Pier 5 filed a motion to
dismiss the two counts on the premise that the prosecution, in
presenting evidence to the grand jury, "did not present the full scope
of the evidence" and left out material that could have been exculpatory
to Mr. Lopez, Ms. Belyi told the Almanac.
Criminal Presiding Judge Donald Ayoob "had
serious concerns," Ms. Belyi said. In summarizing the morning's events,
she noted two arguments that the judge agreed on and that led to the
dismissal:
• The prosecutor "was imprecise with his language" in describing to the grand jury a letter from a witness, Ms. Belyi said.
In an interview, Deputy District Attorney Sean
Gallagher, who is supervising the prosecution of the case, acknowledged
that prosecutors did not present the grand jury with an actual piece of
paper.
• A photo submitted as evidence allegedly showed
an inmate using a contraband cellphone, but the photo actually showed an
inmate using a phone borrowed from a deputy because of an emergency,
Ms. Belyi said.
In determining the basis for their motion, Ms.
Belyi said, she and Mr. Serra "went through all the evidence and saw
what was presented and what was left out that needed to presented to the
grand jury for them to see the full picture."
"We're very happy with the dismissal of the indictment," she said. "We're waiting to see what happens."
Mr. Gallagher said that prosecutors "absolutely
(disagree), no question," with Judge Ayoob's conclusion that the
District Attorney's Office erred in presenting the case.
Prosecutors can appeal the decision or refile the
case. "We don't have a timetable on the decision," he said, in part
because there are other defendants in the case for whom decisions are
pending.
Other charges
In connection with Mr. Lopez's unsuccessful 2014
write-in campaign for sheriff against then two-term sheriff Greg Munks,
the former deputy faces seven election-related charges: fraud,
conspiracy, perjury by filing a counterfeit document, an election code
filing violation, an election code voting violation and two counts of
forgery, prosecutors said.
Mr. Serra and Ms. Belyi have filed a motion to
dismiss this case as well, but their arguments won't be heard until Jan.
25, Ms. Belyi said.
Mr. Lopez has been out of custody on $100,000
bail on the jail-related charges, and out on $170,000 bail on the
election-related charges.
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