An Orange County Superior Court judge Thursday reversed course on dismissing key charges against a doctor and his girlfriend, who face charges of dosing a drink of an acquaintance in a Newport Beach bar.
Orange County Superior Court Judge Michael Leversen last month granted what’s known as a demurrer motion that dismissed some of the charges against Dr. Grant Robicheaux, 43, and Cerissa Riley, 36, but he gave prosecutors 10 days to file an amended complaint. Leversen granted the motion based on a defense argument that the statute of limitations had run out on the charges.
But on Thursday, Leverson changed his mind following further legal arguments from defense attorneys and prosecutors, and denied the demurrer on a newly filed complaint. Leversen said a statute-of-limitations argument was not appropriate in a demurrer, which is a motion that typically challenges a sufficiency of facts to justify a complaint.
Attorney Philip Cohen told Leversen that the defense team intends to file a motion to dismiss charges based on an argument that the statute of limitations had run out. A hearing on that motion is scheduled for Oct. 20. Leversen set Nov. 29 for a trial date, the first time a trial date has been set in the case filed five years ago.
Deputy Attorney General James Toohey argued Thursday that the dosing of the drink to the victim was always a part of the case when the original complaints alleged multiple women were sexually assaulted after being incapacitated with drugs provided by the couple. That meant the statute of limitations would not run out after three years, as defense attorneys argued.
After a preliminary hearing in the case, Leversen dismissed the sexual assault charges against two women.
“There’s no inherent unfairness” and the defendants had “clear notice” of the drugging allegation since the beginning, Toohey argued.
“It’s fundamentally not unfair,” Toohey said of prosecutors alleging poisoning despite a dismissal of the original argument for the motive for the alleged crime.
“I am perplexed he relies on this theory of fairness,” Cohen responded.
Cohen accused prosecutors of vacillating on their arguments to justify the poisoning allegation.
“To be fair, one must be consistent,” Cohen said. “And the inconsistent positions the government has taken on this issue is unfair … and surprises me.”
Cohen argued that if there is a “close call” on a statute of limitations claim, “it should be determined in favor of the defendant” by law.
Cohen argued that the prosecution’s “entire theory relies on” using the drug to “facilitate” the sexual assault claims.
But now those claims have been knocked out after a preliminary hearing, Cohen argued.
“The evidence is there has been no kidnapping, no assault and nothing to facilitate,” Cohen argued. “I don’t know how you can facilitate something that did not take place.”
Leversen told the attorneys, “I’ve wrestled with this decision,” and discussed the possibility of an appeal.
“There’s no clear answer to this issue,” Leversen said of the statute of limitations claim. “I did the best I could, but I’m not always right.”
Leversen noted to the defense in his ruling that he did not exonerate the defendants on the sexual assault claims, but rather “found insufficient competent evidence of one or more elements of the crimes charged.”
The judge said the dosing issue has been part of the case from the beginning and that it was not separate from the sexual assault charges.
“All acts were contemporaneous,” Leversen said.
He added that a demurrer is “not a proper means of testing” the strength of the evidence in the case.
The issue of whether the accuser voluntarily ingested the drug “is a matter for the trier of fact,” meaning a jury or judge if it is a non-jury trial, Leversen said.
“You’re free to raise the issue of statute of limitations at trial,” Leversen said.
If Leversen grants a motion to dismiss charges prosecutors still have the option of refiling the case, which would start the legal process all over again.
The case has seen multiple unexpected twists since it was filed. It became a political football during the election battle between former Orange County District Attorney Tony Rackauckas and his successor, Todd Spitzer. Spitzer ultimately moved to dismiss the case after he ordered an internal review of it, but that was denied by another Orange County Superior Court judge. Spitzer was removed from the case by an Orange County Superior Court judge and the Attorney General’s Office took over the prosecution.
Defense attorneys have filed multiple motions to challenge the search warrant in the case and raising the issue of outrageous governmental conduct, but they have all been denied.
Robicheaux previously faced charges involving five alleged victims and Riley three alleged victims, but a prior Orange County Superior Court judge granted a motion from prosecutors to reduce the charges. There were initially a total of 13 accusers, some of whom prosecutors had planned to use as witnesses to show a pattern of behavior at trial.
By the time the case got to a preliminary hearing there were two alleged victims. After Leversen granted the demurrer last month Riley was off the hook for any charges.
Now the couple both face a charge of poisoning and sale of phencyclidine, both felonies. Riley faces an additional felon count of sale or transport of a controlled substance.
Robicheaux also faces two felony counts of possession of an assault weapon and four misdemeanor counts of possession of a controlled substance, including GHB, more commonly known as the date-rape drug.