Metropolitan News-Enterprise


Wednesday, October 10, 2001


Page 1


Court Overturns Habeas Relief Based on Rafael Perez Testimony


By ROBERT GREENE, Staff Writer


Ex-Los Angeles Police Officer Rafael Perez’s later admission that he repeatedly falsified evidence and lied on the stand was not enough to scuttle the plea bargain a drug defendant accepted after hearing Perez testify, this district’s Court of Appeal has ruled.

Unlike the dozens of defendants whose guilty pleas or convictions were stricken after details of Perez’s corruption emerged, defendant Arthur Theodore Givhan was not entitled to relief because his imprisonment was based not on a tainted hearing but on his own decision to enter into a plea bargain, Div. Four Justice Daniel A. Curry said.

The justice rejected Givhan’s assertion that he was entitled to habeas relief since he was induced to plead no contest by Perez’s prior testimony at a trial that ended with a hung jury.

“The prospect of facing false testimony at [a new] trial alone does not justify a defendant’s decision to accept a plea bargain and will not support a later writ of habeas corpus,” Curry said.

The ruling came in an Oct. 2 unpublished opinion obtained by the MetNews yesterday. It overturns Los Angeles Superior Court Judge Bernard J. Kamins’ grant of a habeas corpus petition.

Hundreds of guilty pleas were called into question last year and dozens of convictions have been overturned in the wake of the Rampart police corruption scandal, sparked by Perez’s arrest for cocaine theft from a police evidence locker and his own plea bargain.

False Evidence

The disgraced officer said he and cohorts trumped up evidence against hapless defendants time and again to secure convictions of people they suspected or to retaliate against people who defied them.

In a series of critiques leveled at the justice system, observers have expressed alarm over the number of defendants who pled guilty when faced with criminal charges and the prospect of testimony by seemingly credible law enforcement officers.

A Los Angeles County Bar Association task force currently is studying the role of justice institutions and procedures in the Rampart scandal. Ninth U.S. Circuit Court of Appeals Judge Arthur Alarcon, who chairs the panel, has said he was “shocked” to learn that defendants pled guilty in 85 percent of the so-called Rampart cases dismissed because of tainted evidence.

Attorney Steven K. Hauser of Santa Monica, one of Givhan’s lawyers, said he believed his client’s case was the first of those affected by Perez’s testimony that reached the Court of Appeal.

“There appears to be an inconsistency in the court’s ruling” when compared with other Rampart-tainted cases, Hauser said. He added that he is still studying whether to seek review in the state Supreme Court.

Faulty Testimony

Prosecutors argued that habeas relief was inappropriate because Givhan failed to show that Perez lied in his case and that any faulty testimony was the basis of his conviction.

Givhan was arrested on cocaine charges in 1993, well before the Rampart scandal, after LAPD Officer Ron Alberca made an undercover drug buy from other suspects and Givhan arrived, prosecutors said, to deliver the goods after being summoned to the scene.

Perez testified at trial that he assisted, observing the actual buy. Alberca testified that he missed the exchange of money and drugs between the defendant and the other suspects.

The jury hung 8-4 in favor of conviction, and the judge declared a mistrial. Prior to a retrial, Givhan pled nolo contendere and was placed on summary probation for three years.

Then, in August 1998, he was found to be in violation of his probation and was sent to prison for a five-year term. Later the same year he sought to withdraw his plea based on the new evidence of Perez’s pattern of corrupt testimony. Kamins took the motion as a petition for habeas corpus and conducted a hearing at which Perez asserted his right not to testify under the Fifth Amendment.

Testimony Contradicted

Givhan asserted other witnesses contradicted Perez’s prior testimony that he was in a position to see the drug buy, that Perez’s recollections were not consistent with Alberca’s and that the cash that Alberca gave to the third party and was allegedly turned over to Givhan as part of the buy was never found on Givhan.

Alberca testified that he could not see an actual exchange from his own vantage point.

A writ of habeas corpus under Penal Code Sec. 1473 (b)(1) is appropriate where it appears  “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration.”

The Los Angeles District Attorney’s Office claimed Sec. 1473(b)(1) should only be applied where the habeas petitioner was found guilty by a jury, not where allegedly false evidence introduced at a hearing or trial arguably induced the petitioner to accept a plea bargain.

Curry said the statute changed the common law rule requiring three steps for a habeas petition—establishing that perjured testimony was adduced at the trial, that representatives of the state knew that it was perjured, and that such testimony may have affected the outcome of the trial.

The statute eliminated the first and second requirements, he said, but not the third.

There was no connection between Perez’s testimony and the conviction after the nolo plea sufficient to justify granting a habeas petition, the justice said.

“Because the trial resulted in a hung jury, the trial was a nullity,” Curry said. “There was no hearing or trial that related to or led to respondent’s incarceration.  Respondent’s incarceration was the sole result of his plea agreement.”

The justice added that information that arose later about Perez’s misconduct undermined his credibility as a witness, but did not point to Givhan’s actual innocence—-the standard for habeas relied on newly discovered evidence.

A reasonable jury might have convicted the defendant based on Alberca’s testimony, without Perez’s, he said.

Unpublished opinions may not be cited as precedent.

The case is People v. Givhan, B145640.


Copyright 2001, Metropolitan News Company