Monday, February 22, 2016
C.A. Says Lawyer Can Be Prosecuted in Ex-Wife’s Murder
By KENNETH OFGANG, Staff Writer
Orange County prosecutors can pursue murder charges against a onetime Mission Viejo attorney whose ex-wife’s body was found off the coast of Paola, Italy, in 2006, the Fourth District Court of Appeal has ruled.
Div. Three, in a 2-1 decision Thursday, denied a habeas corpus petition by Lonnie Kocontes. Kocontes has been in custody since his 2013 arrest at his Florida home.
State Bar records show that Kocontes, 57, was admitted to the State Bar in 1993, took inactive status in 2010, returned to active status in 2012, and became inactive again in 2014.
Miki Kanesaki was married to Kocontes from 1995 to 2001. The Orange County Register reported that she had been a paralegal at the law firm where Kocontes worked.
Authorities said they lived together on and off until 2006, when they went on a European cruise. Kanesaki was last seen alive four days after they boarded, the same day the couple returned from a daylong excursion in Messina, Italy.
The prosecutors said Kocontes had always been the only suspect in the death of Kanesaki, who was strangled. The motive, they said, was that Kocontes was planning to move more than $1 million from several bank accounts and properties he and Kanesaki held into a joint account he held with his new wife, Katherine Kocontes.
The FBI investigated Kanesaki’s death and the money transfers before the Department of Justice seized the money from Kocontes’ bank accounts. Kocontes, however, prevailed in forfeiture proceedings, and federal and Florida prosecutors declined to prosecute him for murder.
Orange County prosecutors, however, said there was newly discovered evidence and filed a complaint in 2013 charging murder for financial gain. In opposing the defense motion to dismiss for lack of territorial jurisdiction, they asserted that the murder was planned in California.
Orange Superior Court Judge William Evans granted the motion to dismiss, ruling that Penal Code §778a(a), barred prosecution for a crime committed outside the United States. But he cautioned that the ruling did not “constitute stare decisis or anything that binds any other judicial officer.”
Prosecutors immediately filed a new complaint, which the defense orally moved to dismiss. Evans denied the motion and continued the arraignment.
The defense then filed a demurrer, along with a written motion to dismiss. While that was pending, prosecutors took the case to a grand jury and obtained an indictment.
Judge Gregg Prickett then dismissed the second complaint as being superseded by the indictment, and later denied the defense motion to dismiss the indictment. He ruled that he was not bound by Evans’ ruling, concluding that collateral estoppel did not apply because the ruling was not final, jeopardy had not attached, the issue was legal rather than factual, and that there were policy reasons not to apply the doctrine.
Kocontes was subsequently arraigned and his case assigned to Judge James Stotler, who denied a Penal Code §995 motion to set aside the indictment. Kocontes then sought habeas corpus relief, solely on the issue of collateral estoppel.
Justice Kathleen O’Leary, writing for the Court of Appeal, and emphasizing that the court was not addressing the issue of territorial jurisdiction, said the prosecution was not precluded from filing a new complaint because Penal Code §1387’s two-dismissal rule applies.
The ruling by Evans did not have collateral estoppel effect, the presiding justice went on to say. The argument, she said, is foreclosed by §1387 and by §1238(a), which—among other things—permits a prosecution appeal from an order setting aside a complaint, or “otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.”
Election of Remedy
Under the statutes, O’Leary reasoned, the prosecution had the right to appeal Evans’ ruling, which it did. But it also had the choice of either continuing that appeal to disposition, which would have rendered the ruling final, or of dismissing the appeal and pursuing the indictment, which is the remedy it elected.
“Acceptance of Kocontes’s theory” that the appeal of Evans’ ruling rendered that ruling final “would render the election of remedies provision meaningless,” the jurist wrote.
Justice William Bedsworth concurred in the opinion, but Justice David Thompson dissented.
Thompson argued that a dismissal for lack of territorial jurisdiction is not subject to the two-dismissal rule.
The case is In re Kocontes, 16 S.O.S. 961.
In addition to the Kanesaki murder, Kocontes faces charges of soliciting the murder of his third wife. The Register reported last May that he stands accused of asking other inmates for help in arranging her murder after she testified against him in the grand jury, recanting testimony she gave to a federal grand jury in 2006.
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