Metropolitan News-Enterprise


Monday, August 11, 2008


Page 1


Perjured Grand Jury Testimony Not Prejudicial—C.A.


By SHERRI M. OKAMOTO, Staff Writer


A defendant found guilty beyond a reasonable doubt was not prejudiced by a witness’ perjured testimony before the grand jury used in securing the indictment against him, the Fourth District Court of Appeal has ruled.

In a decision ordered partially published Thursday, Div. Three affirmed Juan Pablo Becerra’s murder convictions stemming from an indictment based in part of testimony by a fellow gang member who had lied to the grand jury about not being present at two of the charged killings.

Becerra, a 7th Street gang member, was riding as a passenger in a car driven by Jesus Madrigal when he opened fire on a passing vehicle, killing its driver, Pedro Martin. About eight months later, while riding in a vehicle with Madrigal and Jaime Perea, Becerra opened fire on a car stopped at a red light, killing Angel Giles.

Police later arrested Perea for an unrelated crime, and he claimed before a grand jury investigating the Martin and Giles murders to have heard Becerra confess to the crimes. However, he denied being present during the Giles murder, or the murder of Michael Ruiz, which was allegedly connected to Becerra.

When police officers arrested Becerra and searched his apartment, they found the handgun used to kill Gilles. Subsequent testing indicated that Becerra was a possible “main contributor” of DNA found on the gun’s trigger and grip, and the state filed a consolidated information charging Becerra with the murders of Martin, Giles, Ruiz, and other crimes.

At trial, Perea reiterated his testimony regarding Becerra’s confession, and claimed that Becerra had threatened to kill him if he testified at trial. On both direct and cross-examination, Perea admitted he had lied to the grand jury when he denied being present at the Giles and Ruiz murders.

Madrigal also testified against Becerra regarding the Martin and Giles murders, and an eyewitness to the Giles murder described a shooter and vehicle generally matching Becerra and the vehicle Becerra had been in.

The jury found Becerra guilty of the Martin and Giles murders, and all the applicable special circumstance allegations and sentence enhancements true, but the court declared a mistrial as to the counts regarding the Ruiz murder because the jury could not reach a verdict, and the prosecution dismissed those counts.

Orange Superior Court Judge Frank F. Fasel then sentenced Becerra to two consecutive life sentences without the possibility of parole, plus 50 years in state prison.

On appeal, Becerra contended that Perea’s perjury had tainted the indictment returned by the grand jury, and argued the indictment should have been dismissed under both state and federal law.

But Justice Raymond J. Ikola explained that, under federal law, a facially valid indictment is not subject to challenge based on a claim that the grand jury acted on inadequate evidence.

In spite of the Ninth Circuit’s holding in United States v. Basurto (1974) 497 F.2d 781 that due process requires the dismissal of an indictment secured in part by material perjury before the grand jury, Ikola reasoned that more recent federal decisions only apply this standard to cases involving “flagrant” prosecutorial misconduct in which perjury was knowingly presenting to the grand jury.

He concluded Becerra had failed to show any due process violation under prevailing Ninth Circuit law because Becerra conceded that the state did not know Perea was lying at the time he testified to the grand jury.

Citing People v. Laney (1981) 115 Cal.App.3d 508, Ikola then explained that, under state law, a defendant must show prejudice at trial in order to prevail on a post-trial claim that an indictment was wrongly procured through perjury.

Because the trial jury found Becerra guilty beyond a reasonable doubt after being informed of Perea’s perjury, Ikola reasoned, a similarly informed grand jury would have still found probable cause and Becerra was not prejudiced by the indictment secured in reliance on Perea’s perjury.

In the unpublished portion of the case, Ikola concluded sufficient evidence corroborated Madrigal and Perea’s testimony relating to the Martin and Giles murders. Although testimony of an accomplice to a crime cannot be corroborated by testimony of another accomplice to the same crime, he wrote, an accomplice from one crime may corroborate testimony of an accomplice to a different crime.

Although both Madrigal and Perea were accomplices to at least one of the charged murders, only Madrigal was an accomplice to the Martin murder. Accordingly, Ikola concluded, Perea’s testimony recounting Becerra’s confession sufficiently corroborated Madrigal’s testimony.

As both Madrigal and Perea were accomplices to the Giles murder, further corroboration was required to their testimony regarding those counts, Ikola explained, but he concluded the DNA evidence, witness testimony, threat against Perea and Becerra’s flight from the arresting officers provided sufficient corroboration.

Justices Kathleen O’Leary and Eileen C. Moore joined Ikola in his decision.

The case is People v. Becerra, 08 S.O.S. 4818.


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