Metropolitan News-Enterprise


Thursday, April 15, 2004


Page 3


C.A. Bars Former Councilwoman’s ‘Entrapment by Estoppel’ Defense


By a MetNews Staff Writer


This district’s Court of Appeal yesterday revived efforts to prosecute a former Bell Gardens city councilwoman for conflict of interest, ruling that a judge erred in deciding she could present evidence of “entrapment by estoppel” in her defense.

Prosecutors abandoned felony conflict of interest charges against Maria Chacon after Los Angeles Superior Court Judge Michael M. Johnson said that at a trial he would, if the evidence warranted it, instruct jurors she could not be convicted if she acted in reliance on advice from then-City Attorney Arnoldo Beltran. Chacon was charged with conspiring with other council members to repeal an ordinance barring council members from accepting the post of city manager until they had been off the council for a year.

The ordinance was repealed in October of 2000, with Chacon joining her colleagues in voting in favor of the repeal, and Chacon accepted the city manager job in December of that year.

Her lawyers said she would present testimony that Beltran proposed eliminating the existing ordinance, drafted the repeal, and drafted the contract hiring her as city manager. Her due process rights under the U.S. Constitution would be violated if she could be prosecuted for relying on Beltran’s advice, she contended.

Johnson agreed, saying he was bound to follow Cox v. Louisiana (1965) 379 U.S. 559. Cox held that demonstrators could not be prosecuted for picketing “near” a courthouse after the police chief and city officials told them it would be legal to do so across the street.

Writing for Div. Four, Justice Norman L. Epstein noted that the “entrapment by estoppel” defense has not been recognized in any published California opinion. Distinguishing Cox, he pointed out that many federal courts have “rejected attempts to invoke the defense of entrapment by estoppel where a state or local official has given advice concerning a federal offense.”

He declared:

“The reasoning of the federal circuit courts that advice given by a state official cannot preclude federal prosecution for a violation of federal law applies with equal force where, as in this case, the defendant claims a defense to a state prosecution based on advice from a city official….[T]he city attorney of Bell Gardens did not have the authority to bind the People of the State of California to an erroneous interpretation of state conflict of interest statutes.”

In Cox, Epstein explained, the defendants had relied on advice from the very Louisiana officials charged with enforcing a statute containing an imprecise term.

“Unlike the officials and agencies in Cox, Raley [v. Ohio (1959) 360 U.S. 423], and United States v. Pennsylvania Chem. Corp. [(1973) 411 U.S. 655], the city attorney of Bell Gardens has neither enforcement nor regulatory authority over the state conflict of interest criminal statutes,” the justice said.

He added:

“The factual scenario in which this prosecution arises suggests a good reason to reject the defense: Chacon relies on advice given by a subordinate. Bell Gardens is a general law city. Government Code sections 36505 and 36506 establish that an appointed city attorney serves at the pleasure of the city council. Though this circumstance is not determinative, it presents a good illustration of why advice given by a local government official should not estop the state from pursuing a prosecution for a violation of a state statute.”

Allowing the “entrapment by estoppel” defense under the circumstance of Chacon’s case “would undercut the district attorney’s prosecutorial authority,” Epstein concluded.

The justice also rejected Chacon’s argument that prosecutors were not entitled to appeal the dismissal of the case against her.

He conceded that previous cases upholding the right of prosecutors to appeal after an adverse evidentiary ruling forced them to abandon a case involved the exclusion of prosecution evidence. But he reasoned that the same rationale was applicable, since if the case were to go forward and Chacon were acquitted an appeal would be barred, leaving prosecutors without a means of challenging the Johnson’s ruling.

Chacon’s attorney, Michael D. Nasatir of Nasatir, Hirsch, Podberesky & Genego in Santa Monica, declined to comment yesterday, saying he had not yet reviewed the appellate ruling. Deputy District Attorney Phyllis C. Asayama, who represented the prosecution on appeal, did not return a MetNews phone call.

The case is People v. Chacon, B164649.


Copyright 2004, Metropolitan News Company