The prosecution announced Friday it plans to retry former Los Angeles City Councilman Richard Alarcon and his wife, whose convictions for fraudulent voting and perjury by declaration were reversed in January by a state appeals court panel.
Los Angeles Superior Court Judge George G. Lomeli noted after a closed- door meeting with attorneys that the prosecution was “prepared to try this case as soon as possible.” He ordered Alarcon, 62, and his 50-year-old wife, Flora, to return to court June 24, when a trial date is expected to be set.
On Jan. 20, a three-justice panel from California’s 2nd District Court of Appeal cited a jury instruction given during the Alarcons’ trial in overturning their convictions and ordering the case sent back to the trial court.
Richard Alarcon’s attorney, Richard Lasting, said outside court, “It is our intention to file a motion requesting the court to dismiss the case. Hopefully, before that happens, the district attorney will take a fresh look at what is left for a retrial and make the decision that investing further time and public resources to this matter is not in the interest of justice.”
The lawyer said the couple’s convictions were reversed “because of a jury instruction that improperly shifted the burden of proof from the prosecution to the Alarcons,” and noted that they had been acquitted of other charges.
Lasting said they had “prevailed on the most important issue in the case” involving whether the couple had established “domicile” at a home in Panorama City, which was within Alarcon’s council district.
Jane Robison with the District Attorney’s Office responded, “We remain confident that the evidence shows beyond a reasonable doubt that Richard and Flora Alarcon violated the law.”
Richard Alarcon was convicted in July 2014 of three counts of fraudulent voting and one count of perjury by declaration, but was acquitted of a dozen other felony counts.
The charges on which he was convicted involved fraudulent voting in the November 2008 and the March and May elections in 2009, and perjury by declaration involving his November 2008 declaration of intent to become a city council candidate.
He was sentenced in October 2014 to a 120-day jail term, along with 600 hours of community service and five years probation, and was barred from holding public office.
He surrendered in December 2014 to begin serving the jail term and was sent home after being fitted with an electronic monitoring device.
Alarcon’s wife was convicted of two counts of fraudulent voting in the March 2009 and May 2009 elections and one count of perjury by declaration involving a provisional ballot in November 2008. She was acquitted of two other counts and was sentenced to 400 hours of community service and five years probation.
In their appeal, defense attorneys contended that Lomeli erred by giving the jury an instruction on domicile during the Alarcons’ trial regarding allegations that they had lived outside the district he was elected to represent.
In a 15-page opinion, the appellate court panel ruled that the jury instruction required jurors to determine whether the Alarcons had physically resided at the home inside his City Council district.
“Once the jurors found that defendants had not done so, the mandatory presumption of (the jury instruction) required them to find that home was not defendants’ legal domicile,” the justices wrote. The panel found that it “cannot conclude that the instructional error was harmless beyond a reasonable doubt.”
Deputy District Attorney Michele Gilmer told jurors during the trial that the evidence proved the couple lied about living at the Panorama City home inside Alarcon’s district.
Alarcon — who served two separate terms on the city council along with stints in the state Senate and Assembly — insisted that he began living at the Panorama City home within the council district in November 2006.
Shortly after a search warrant was served, the longtime legislator told reporters that an intruder had caused significant damage to the Panorama City home during an October 2009 break-in and that he had returned to the house several times to try to repair the damage. He said then that he and his wife were temporarily staying at a house in an adjacent council district.
In July 2010, just before a grand jury indicted Alarcon and his wife, he said: “Because my wife owns two homes and we have stayed in both of them during the last four years, I can understand the confusion, but my permanent home has always been on Nordhoff Street (in Panorama City), regardless of where I may stay.”