Metropolitan News-Enterprise


Wednesday, June 24, 2015


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Prosecutor’s Failure to Read Police Report Not Ground For Setting Aside Plea Deal—Court of Appeal


By a MetNews Staff Writer


A prosecutor’s failure to read a police report, and thus to realize that a plea agreement would result in dismissal of felony child molestation charges against a defendant who would receive a misdemeanor conviction and no jail time, did not support setting aside the agreement,  the Fourth District Court of Appeal ruled yesterday.

In a 2-1 decision, the panel reinstated the agreement and disposition under which Joseph S.M. Amin was placed on three years’ probation and ordered to register as a sex offender and attend counseling for two years. Amin pled guilty to secretly videotaping underneath a woman’s clothing for purposes of sexual gratification and prowling.

The agreement precluded prosecution of Amin in connection with any of the other incidents mentioned in a police report, “charged or uncharged.”

The deputy district attorney who agreed to the plea, Tina Patel, subsequently filed a felony complaint charging Amin with molesting two 12-year-old girls. Amin’s attorney, Brian Gurwitz, moved to dismiss the complaint as being barred by the plea agreement, noting that the police report filed in the case where the plea was entered, which actually contained statements by several police officers, included a reference to Amin as a “person of interest” in the molestation case.

The prosecution responded that the agreement should be rescinded because it was based on fraud and mistake of fact, and that it should not, as a matter of public policy, bar the felony prosecution.

Orange Superior Court Judge Derek Johnson held an evidentiary hearing, at which Gurwitz testified that he had asked Patel if she would agree not to prosecute his client for other incidents mentioned in the police report if he were willing to plead guilty in the immediate case and accept the counseling and registration requirements. Gurwitz denied that Patel asked whether, or that he said that, the other incidents were limited to surreptitious videotaping.

On cross-examination, he said he did not volunteer that one of the incidents involved molestation because he assumed Patel had read the report.

Patel, on the other hand, testified she had not read the report before the plea discussions began, and that the summary prepared by the filing deputy made no mention of any other crimes. So when Gurwitz asked whether she would agree not to bring other charges, she said, she asked what he was talking about, he said “similar stuff,” and when she specifically asked if that meant other “up the skirt stuff,” he said “yes, similar stuff.”

The prosecutor added that she trusted Gurwitz to a certain extent because he was a former senior deputy in her office. She also said that she read the police report for the case prior to Amin entering the plea, but not in detail, and overlooked the factual description of the molestation incident.

Johnson concluded that there was no fraud or duress on the part of Gurwitz, but that Patel had acted in good faith and that it would be unconscionable to allow the prosecutor’s simple negligence to act as a bar to Amin’s prosecution on felony charges.

Justice William Bedsworth, however, writing yesterday for the Court of Appeal, said Amin was entitled to a writ of mandate enforcing the plea agreement.

The justice questioned whether the prosecution should ever be allowed to plead the contractual defense of mistake of fact to undo a plea agreement. But even if the rules of civil contract were applied, he said, it would not render Amin’s plea agreement invalid under the facts.

Under Restatement Second of Contracts §154, Bedsworth explained, a party must bear the risk of mistake when the risk is allocated to that party by agreement, when the party is aware of the limitations in his or her knowledge of the risks but accepts that knowledge as sufficient, or when it is reasonable to allocate the risk to that party.

Under the second prong, the justice concluded, the prosecution must be held responsible for the mistake because Patel knowingly decided to go through with the plea without having fully read the report.

“She knew there were other offenses involved,” he wrote. “She perused the report because she wanted to know what they were.  She failed to read it closely enough to learn they were potential felonies, but she had to know how limited her knowledge of those cases was.  The choice was to decline the deal until she had a chance to fully review those reports or act in conscious ignorance to get an agreement that involved registration as a sex offender.  She chose the latter – not unreasonable – course.”

Presiding Justice Kathleen O’Leary concurred in the opinion.

Justice Eileen Moore dissented, arguing that plea agreements must be treated differently than private contracts, given the public interest involved. She said the agreement should be voided on the ground that it would be unconscionable to permit a defendant to avoid a felony prosecution based on a no-jail misdemeanor plea without an awareness on the part of all concerned that this would be the result.

The case is Amin v. Superior Court (People), G050191.


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