Jan. 20--A panel of justices Wednesday threw out the perjury and voter fraud convictions of former L.A. City Councilman Richard Alarcon and his wife, ruling that the trial judge had issued improper jury instructions.
The 2nd District Court of Appeal justices found fault with Superior Court Judge George Lomeli's handling of the instructions, ruling that "we cannot conclude that the instructional error was harmless beyond a reasonable doubt."
Alarcon, 62, said the case had been costly, both in terms of legal bills and in the impact it had on his political career. The former councilman, who lives in Mission Hills, attributed his defeat in a State Assembly race in 2012 to the bad publicity generated by the criminal case.
"I feel incredible. I'm very pleased that the appellate system works," Alarcon said Wednesday. "We never felt we did anything wrong. It doesn't diminish the damage that was done, but we'll take the victory at this point."
Alarcon, a veteran San Fernando Valley politician, and his wife, Flora Montes de Oca Alarcon, were found guilty in 2014 of lying about where they lived so Alarcon could run for a seat on the Los Angeles City Council. Alarcon was a councilman until 2013, when he stepped down because of term limits.
Alarcon was convicted of three voter-fraud charges and one perjury charge, but acquitted on 12 other counts. His wife was convicted of two voting charges and one perjury count but acquitted on two others.
Instead of serving a 120-day jail sentence, Alarcon served time under house arrest. His wife was sentenced to community service.
"I'm just feeling grateful -- grateful to all the people who never stopped believing in us," Alarcon said.
UC Irvine law professor Richard Hasen said he isn't necessarily surprised that the convictions were overturned, because the legal standard is so vague.
"Figuring out what counts as domicile ... is so difficult, it provides a basis for plausible legal arguments, no matter what instructions a judge might give," he said. "A lot of it is just so murky."
California law requires that candidates live in the districts they seek to represent. The state Elections Code defines residence for voting purposes as a "domicile," a home where one intends to remain and return to after an absence.
The Alarcons were accused of falsely claiming they lived in Panorama City, in the district Alarcon ran to represent, while actually residing five miles away in Sun Valley.
During the trial, defense attorneys told the jury that the Alarcons were renovating the Panorama City home -- considering it their permanent residence -- and planned to return to it.
Deputy Dist. Atty. Michele Gilmer presented evidence suggesting that the Alarcons didn't plan to return to the Panorama City home, including blueprints from 2007 for developing the home into a multi-unit residential complex. The jury also heard former City Councilwoman Wendy Greuel testify that Alarcon once asked her to agree to move her district boundary so the Sun Valley residence would be in the district he represented.
After five days of deliberating, the jury sided with the prosecution, saying they weren't convinced the Alarcons really intended to live in Panorama City.
The Alarcons' lawyers appealed the conviction because of one line of jury instruction.
Quoting the Elections Code, Lomeli told the jury there is a "rebuttable presumption" that an officeholder must have lived in a residence sometime in the preceding year for it to be considered his or her "domicile."
Alarcon's attorneys argued that this instruction improperly led the jury to rule in the prosecution's favor. The judge should have told the jury that not living in the home for a year shouldn't be taken as proof but rather as "an inference" as to where the couple was domiciled, the justices said in their decision.
This error "shifted the burden of proof" away from the prosecution, according to the panel's decision.
Join the conversation on Facebook >>
The influence of these improper jury instructions can be seen in the way the convictions were handed down, the panel wrote.
The charges against the Alarcons spanned 2006 to 2009. The jury acquitted Alarcon and his wife of charges from 2006 and 2007 and well into 2008, but convicted them of charges dated in November 2008.
According to the appeals panel, that's likely because the prosecution presented evidence showing that the Alarcons were absent from the Panorama City home starting around Nov. 5, 2007, providing a "strong indication" that the jury instruction "was the basis for the jury's determination regarding domicile."
"Given these circumstances, we cannot conclude that the instructional error was harmless beyond a reasonable doubt," the justices wrote.
Amy Jacks, the Alarcons' attorney, said she was glad the panel agreed that the instructions took the jury's focus "away from the true definition of what a person's domicile is."
"That's why the Alarcons were convicted of the few offenses they were convicted of, and that's just not fair," she said.
Hasen said the prosecution could appeal to the state Supreme Court, retry the case in trial court or petition for a rehearing in the court of appeal.
But prosecutors might have a "harder time" retrying the case because the jury instruction wouldn't be delivered in the same way, he added.
Los Angeles County Dist. Atty. Jackie Lacey said in a statement that her office was "reviewing the opinion and deciding on our options."
Alarcon is one of several politicians to be targeted in recent years over the issue of residency. Six months before Alarcon was convicted, a jury in a similar case found former state Sen. Roderick Wright guilty of felony perjury and voter fraud. Wright also filed an appeal.
Prosecutors also have secured convictions in residency cases in Vernon, Huntington Park, West Covina and other cities.
@davidzahniser
ALSO
Former USC tight end arrested in carjacking during probe of robberies
Federal agency to investigate fatal Greyhound bus crash in San Jose; victims identified
Teen girl attacked as she waits for ride home from Ontario school
.jpg?w=600)
