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Prosecutor Was Remiss in Assuring Judge That Victims’ Restitution Claims Were Valid—C.A.

By a MetNews Staff Writer

It was misconduct for a prosecutor to tell the judge presiding over a restitution hearing that he had “spoken with the victims” and was confident of the legitimacy of their claims, Div. One of the First District Court of Appeal has declared.

Justice Monique Langhorne Wilson authored the unpublished opinion, filed Wednesday, acting upon an appeal from restitution orders by Contra Costa Superior Court Judge Jennifer Lee totaling $190,677.60.

Contra Costa Deputy District Attorney Christopher R. Sansoe had advised Lee that his “opinion and belief” was that all losses claimed by the four victims “are accounted for based on the documentation contained” in their declarations.

Defendants Joseph C. Wells Jr. and Adama Diop—who pled guilty to four counts of home-invasion robberies and other felonies, pursuant to a plea bargain that resulted in 18-year prison sentences for each of them—argued on appeal that Sansoe in essence provided unsworn testimony, in contravention of the attorney-advocate rule which generally bars a party’s lawyer from acting as a witness.

Harmless Error

Langhorne Wilson agreed that such a violation had occurred but declared that, under the circumstances, it was harmless error. She wrote:

“The People do not dispute that the advocate-witness rule applies to a prosecutor’s unsworn statements at a restitution hearing. Rather, the People argue that the prosecutor did not violate the rule because the comments at issue reflect his analysis of the evidence presented at the restitution hearing, and thus they constitute proper attorney argument. Defendants respond that the challenged statements improperly referred to hearsay evidence.

“We disagree with the People’s depiction of the challenged statements.”

Prosecutorial Misconduct

The justice said that “case law recognizes” that where a lawyer asserts the truth of matters that outside the record, he or she “has essentially offered unsworn testimony and has committed prosecutorial misconduct.” She continued:

“Here, at least some of the statements the prosecutor made at the restitution hearing went beyond the parties’ exhibits by referring to independent hearsay evidence, namely comments the victims made to the prosecutor.

“Nonetheless, regardless of whether the prosecutor’s actions are characterized as prosecutorial misconduct or a violation of the advocate-witness rule, the record does not reveal any prejudice to defendants.”

While the prosecutor’s remarks might have been damaging if made before a jury, Langhorne Wilson said, it is unlikely that confusion would have been engendered in a judge based on deviation from the attorney-advocate rule.

The case is People v. Diop, A170129.

The defendants had been charged with 27 felony counts, most of which were dismissed as part of the plea bargain. They had each been held in lieu of bail set at $9,125,000.