Metropolitan News-Enterprise


Wednesday, April 20, 2022


Page 1


Court of Appeal:

D.A. Must Testify as to Entreaties by County Lawyers

Haller Says Plaintiff in Action Against County of Riverside Based on Conduct of Former District Attorney Is Entitled to Depose Current Chief Prosecutor on Efforts to Deter Testimony That Predecessor Is Unethical


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal yesterday reversed an order quashing a deposition subpoena served on Riverside District Attorney Mike Hestrin to secure his account of efforts by county attorneys to dissuade him from testifying as to the lack of ethics of his predecessor in office.

The deposition is sought by a former deputy district attorney, Christopher Ross, who is suing the county for whistleblower retaliation and disability discrimination which he contends was pursuant to instructions from then–District Attorney Paul Zellerbach.

The actions taken against him, he asserts, were based on his insistence between 2011 and 2013 that an innocent man was facing a trial for murder. In 2010, Zellerbach, then a Riverside Superior Court judge, defeated incumbent Rod Pacheco, and was himself unseated in 2014 by Hestrin.

Yesterday’s opinion, by Acting Presiding Justice Judith L. Haller, says that the subpoena was properly quashed by Riverside Superior Court Judge Kira L. Klatchko to the extent Ross sought to depose Hestrin as to advice he rendered in 2013. Ross maintains that Hestrin, then president of the Riverside County prosecutors’ union, counseled him as to his rights.



Riverside District Attorney


Pacheco’s Testimony

Pacheco revealed in a deposition a conversation he and Hestrin had concerning Zellerbach. He testified:

“Well, we were talking about our respective opinions of Mr. Zellerbach as one of the most...unethical lawyers we’ve ever seen as prosecutors. And we were discussing that and he said that the County lawyer or lawyers were telling him not to say that. And his response to them was to say, ‘I ran on that’ this is what he told me—‘I ran against Mr. Zellerbach’ and said that loudly. ‘I’m not changing my testimony about that. He’s clearly unethical.

“And that’s what he related to the County lawyers who wanted him to say something different. This is what he said. I obviously wasn’t a part of that conversation with those lawyers. They weren’t his lawyers. They were lawyers for the County....

“I mean, ... I’ve heard worse things and I’ve heard smaller things. It’s pretty bad but, you know—they obviously didn’t want him to testify in that fashion.”

Subornation of Perjury

Asked if Hestrin was telling him that the county lawyers were attempting to suborn perjury, Pacheco answered:

“Well, Mr. Hestrin made it very clear that they tried to get him to say that Mr. Zellerbach—that they didn’t want him to say that Mr. Zellerbach was unethical. And Mr. Hestrin made it very clear that he was going to tell the truth and not say that. In fact, quite the opposite. And not for me to judge.”

When Ross subpoenaed Hestrin, the county moved to quash the subpoena, citing the “general rule...that agency heads and other top governmental executives are not subject to deposition absent compelling reasons.” Such reasons, it said, include circumstances where “the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source,” which, it insisted, was inapplicable.

Haller’s Opinion

Haller wrote that if any attorney-client privilege attached to communications between county attorneys and Hestrin, “Hestrin waived it by voluntarily disclosing the communications to Pacheco.” She added:

“And, although we agree with the trial court that the testimony is irrelevant to the merits of Ross’s substantive claims against the County, the testimony is relevant to Zellerbach’s credibility, and he will likely be a material trial witness. Testimony showing the unidentified County lawyers attempted to suppress or alter a witness’s testimony about the credibility of a material witness is also relevant to show the County’s consciousness of guilt.”

The jurist elaborated:

“We conclude that where, as here, a party presents credible evidence that another party has attempted (directly or through its agents) to alter the testimony of a witness about a material issue in the case—including the credibility of a witness likely to testify about a material issue—evidence regarding the alleged attempt is relevant, potentially admissible, and, thus, discoverable.”

High-Ranking Official

She said that while Hestrin is a high-ranking county official, and others are available to testify as to Zellerbach’s general lack of credibility, “there do not appear to be any other sources of evidence regarding attempts by unidentified County lawyers to alter witness testimony about credibility—attempts that are independently relevant to the additional issue of the County’s consciousness of guilt.”

The case is Ross v Superior Court (County of Riverside), D079278.

Hestrin said yesterday:

“We are satisfied with the court’s opinion but due to the pending litigation we can make no further comment.”

Zellerbach in 2016 incurred a public reproval based on his 2015 conviction, pursuant to a no-contest plea, of misdemeanor vandalism. The then-district attorney sabotaged Hestrin campaign signs.


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