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LAKEPORT, Calif. – On Thursday a visiting judge denied a defense motion seeking a dismissal or mistrial in the case of two men on trial for a June 2013 home invasion and shooting.
Attorney Bill Conwell filed the motion on behalf of his client, Dion Davis II, with attorney Doug Ferguson joining the action on behalf of his client, Gregory Elarms, Davis' half-brother and co-defendant.
Conwell alleged that prosecutorial misconduct has taken place, and that discovery evidence has been released to the defense late or, in some cases, not at all, and in other instances had been destroyed.
District Attorney Don Anderson, who is prosecuting the case with Deputy District Attorney Daniel Flesch as his co-counsel, successfully argued that case discovery was produced in a timely manner, and one document that was produced late – specifically, a detective's report – wasn't relevant to the two defendants.
The trial of Davis, 27, and Elarms, 30, both of San Francisco, began at the end of January.
Davis and Elarms are alleged to have been among five suspects involved in the June 26, 2013, home invasion robbery at the Clearlake Oaks residence of Ronnie and Janeane Bogner, during which the Bogners' adult son, Jacob, was shot in the leg and pistol-whipped.
Davis, who is alleged to have been the shooter, is charged with attempted murder. Both he and his brother are charged with robbery, burglary, assault with a firearm on Jacob Bogner and on Lt. Tim Celli of the Clearlake Police Department, car theft, theft, vandalism and conspiracy.
Retired Placer County Judge James Garbolino – who is presiding at trial due to the local judges recusing themselves because they know the Bogners – held a Thursday afternoon hearing to consider Conwell's motion as well as Anderson's response.
At the start of the hearing – which took place after the jury had been dismissed for the day – Garbolino briefly convened the matter before going into a private – or “in camera” – hearing with sheriff's office personnel and Deputy County Counsel Lloyd Guintivano.
The in camera hearing was to discuss matters related to a defense Pitchess motion – which seeks access to a law enforcement officer's personnel records – regarding sheriff's Det. Doug Dahmen, who had been the lead detective on the case.
The hearing also considered inquiries related to Brady v. Maryland, a US Supreme Court case that requires any potentially exculpatory evidence – including the performance of a law enforcement officer – be turned over to criminal defendants. That includes information in personnel records that could be impeaching.
During testimony at the start of the trial, Dahmen testified to failing to follow up on potentially exculpatory evidence for San Franciscan Dexter Currington, who had been arrested as the case's fifth suspect in September 2013.
He was eventually released in March 2014 after the District Attorney's Office determined he was not involved.
While the in camera discussion was taking place in the jury room, it was discovered that in the courtroom Davis and Elarms – sitting at the defense table – were able to see the content of the discussion through a connection between Conwell's computer and that of the court reporter, which is a service offered during the trial proceedings.
At one point the court reporter emerged from the jury room and took Conwell's computer temporarily.
When Garbolino and the group returned from the discussion, he ruled that he was not releasing the information from the discussion, as he didn't find it justified.
He explained the matter of the proceedings being broadcast to Conwell's computer and seen by the defendants, and ordered that the information not be reproduced, transmitted or communicated to any other person.
Garbolino then moved to the matter of Conwell's dismissal motion and the alleged discovery violations.
In his motion, Conwell had raised issues with a number of discovery items, among them, an interview conducted with Jacob Bogner by the Chico Police Department shortly after the shooting, done as a courtesy, as Bogner had been transported to Enloe Hospital in Chico for treatment. Conwell said it was provided to the defense in October after having been requested in June.
Anderson's written motion noted the Chico Police interview was given to the defense in February 2014, and a second copy was delivered in October.
The defense also requested in July discovery related to firearm tool mark evidence. Anderson said the information was from the notes of a Department of Justice expert that hadn't been sent to the District Attorney's Office. The notes were provided to the defense on Feb. 5, the day the expert testified at trial.
There also were requests for a recording of an interview with Janeane Bogner that Dahmen conducted on July 2, 2013, which Anderson said he's not sure ever existed; a jailhouse interview Dahmen had with Currington on Sept. 28, 2013, sent to defense in June; and a report about two other defendants in the home invasion – Sean Foss and Tyler Gallon – in which Gallon is alleged to have encouraged other Lake County Jail inmates to intimidate Foss, provided in January.
The defense motion also mentioned a possible Brady investigation by Anderson's office into the truthfulness of Dahmen's statements on the stand earlier in the trial.
Anderson said no such investigation was done as of Jan. 13, although a preliminary review of the information available caused him to conclude that he could not find there was “substantial evidence” that Dahmen lied, “versus being incompetent.”
Judge, defense questions detective
Garbolino called Dahmen – accompanied to his attorney, Manuel Nieto – to the stand, at which point Garbolino himself asked Dahmen a number of questions about the items of discovery evidence cited in Conwell's action.
He asked Dahmen about the Janeane Bogner interview, and if it had been recorded. Dahmen said he did a report about it, but his report doesn't say that he recorded the session.
It was during that interview that Bogner identified Currington in a photo lineup. He subsequently was arrested.
Garbolino asked Dahmen about alibi evidence Currington had given him during the jailhouse interview. Dahmen said Currington stated he had been helping a friend move. He also gave Dahmen phone numbers of people to call to back up his alibi.
However, Dahmen didn't call those individuals. Garbolino asked why he didn't.
“I can't recall why I did not,” said Dahmen. “I didn't conduct any further followup.”
When Garbolino asked a series of other questions about alibi contacts and interaction with the District Attorney's Office over the case, Dahmen repeatedly responded, “I can't recall.”
Garbolino asked Dahmen why it took him six months to submit a report on his jailhouse interview with Currington. “I can't give you an excuse,” Dahmen said.
During his questioning of Dahmen, Conwell asked about Dahmen receiving the Chico Police report and the recording of the Janeane Bogner interview. Dahmen said he didn't recall receiving the report and didn't know what happened with the Bogner interview.
Ferguson asked Dahmen if he recalled showing Bogner a photo lineup and doing “anything improper.” Dahmen said he didn't remember.
Anderson had no questions for Dahmen.
In his arguments to the court, Conwell raised issues about a “seriously tainted identification process” in the case, emphasizing that the case is built on eyewitness identification, which was why the matters about Dahmen's interviews are so important.
Conwell said it wasn't Anderson who he was alleging was hiding discovery, it was the prosecution team, adding that case law is very clear that the prosecution team includes law enforcement. There are many cases, he added, that support the idea that Dahmen is part of Anderson's prosecution team.
He also raised concerns about an incident in which Gallon's father was alleged to have threatened Foss in jail. Due to the failure of making a timely report, video of that threat was lost, since the sheriff's office only keeps it for a specific amount of time, Conwell said.
He said there were several instances of the same officer – Dahmen – interfering with the investigative process. “That is evidence that the police were not acting in their role of investigators,” Conwell said.
Conwell said the jury needs to have the information – at least in the form of a jury instruction – that proper procedures weren't followed.
Anderson said it still hasn't been determined if Dahmen actually recorded the July 2013 interview with Janeane Bogner. If it had been recorded, Anderson said it would only show irregularities regarding the handling of Currington, and wouldn't be relevant to Davis.
He maintained there were no discovery violations. “As soon as we get the information, we turn it over to the defense.”
Anderson said some aspects of the case were not handled properly by the sheriff's office, which he acknowledged is part of the prosecution team. However, he said those particular aspects involved Currington, not Davis and Elarms.
Conwell replied that the issues he had with the prosecution could undermine confidence in the verdict. “This is a trial that has been infected by misconduct by the police,” he said, which was why he called an eyewitness expert.
Garbolino said he was not convinced that the recording of the Janeane Bogner interview actually existed, although there are indications that it did. The threats against Foss also can't be tied to the case.
He denied the requests for dismissal and mistrial. If the defense wanted to propose a special jury instruction, Garbolino said he would be sure to review it to ensure it accurately reflected any delays or faults.
The defense will continue presenting its case on Friday afternoon, and is expected to wrap up in time for closing arguments to take place at the end of next week.
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NORTH COAST, Calif. – State Sen. Mike McGuire co-authored legislation introduced this week to help rural counties recover more than a decade worth of payment in lieu of taxes from the state.
Small, rural counties like Lake County with tax-exempt state land miss out on taxes they would otherwise be paid for the property.
Instead, the state is obligated to make payments in lieu of taxes – or PILT – to help counties recover the lost property tax revenue.
The state owes more than $19 million in PILT obligations to counties across the state, for funds they have not been paid over the last several years.
Senate Bill 234, introduced Feb. 13 by a bipartisan group of more than two dozen legislators, would appropriate $19 million to the California Department of Fish and Wildlife for back payments to counties.
“Counties have not received their Fish and Wildlife PILT payments since 2001,” Senator Mike McGuire said. “It’s time we make it a priority that our rural counties get what they are due.”
According to California Fish and Game code, payments are required to be made to counties equal to the property taxes previously levied on the property.
However, no payments have been made to counties since the 2001–02 fiscal year when a partial payment was made.
SB 234 was authored by Senators Lois Wolk and Jim Nielsen. Principal coauthors are Senators McGuire, Berryhill and Cannella with Assemblymembers Alejo, Dodd and Frazier. Coauthors are Senators Gaines, Galgiani, Morrell, Stone and Vidak with Assemblymembers Achadjian, Bigelow, Chávez, Dahle, Gallagher, Gray, Lackey, Levine, Linder, Melendez, Olsen, Patterson, Steinorth and Waldron.
The California Department of Fish and Wildlife (CDFW) has launched a pilot program that makes it easier for the public to report wildlife and pollution crimes with their cell phones.
Tipsters can now text anonymous information, including photographs, to the Californians Turn in Poachers and Polluters (CalTIP) program via “tip411” (numerically, 847411).
Wildlife officers can respond directly, resulting in an anonymous two-way conversation.
Users must start the text message with the word “Caltip.” Phone number line, type: 847411. Message line, type: Caltip (followed by the message/tip).
In conjunction with tip411 (847411), CDFW is launching a CalTIP smartphone application which similarly enables the public to share an anonymous tip and/or photograph with wildlife officers and lets the officers converse anonymously with the tipster.
The CalTIP app can be downloaded for free via the Google Play Store and iTunes App Store. Standard message and data rates may apply.
Anonymous tips can also be submitted right from CDFW’s Web site at www.dfg.ca.gov/enforcement/caltip.aspx .
Both the CALTIP App and tip411 are completely anonymous, as the technology removes all identifying information before wildlife officers see the tips.
“We believe the public is our greatest law enforcement resource,” said CDFW Lt. Michael Milotz, CalTIP coordinator. “Tip411 and the CalTIP App will give us another tool to combat pollution and the unlawful take and commercialization of California’s wildlife.”
During the two-month pilot period, CDFW will collect usage data to help determine whether tip411 and the CalTIP App will be permanently added to the CalTIP program.
CalTIP is a confidential secret witness program that encourages the public to provide factual information leading to the arrest of poachers and polluters.
The program is funded by penalty assessments generated by fines from wildlife violators and polluters.
The existing CalTIP confidential secret witness phone number, 1-888-334-2258, will remain operational 24 hours a day, seven days a week.
Wildlife officers encourage anyone who witnesses a poaching or polluting violation, or who has information about a violation, to report it using any means available.
U.S. Rep. Mike Thompson (D-CA) on Wednesday led a bipartisan coalition of legislators in calling on President Barack Obama to protect local clean energy royalties – which have helped pay for important public projects in Lake County – from harmful budget cuts.
In a letter to the president, Thompson and the lawmakers expressed their disappointment that geothermal royalty payments to counties were eliminated in the President’s recently released fiscal year 2016 budget.
Because of the high burdens that geothermal production places on the counties where it is developed, counties currently share in the revenue of the federal receipts.
Many of the counties receiving revenue from geothermal receipts are small, rural counties – like Lake – facing uncertain budget situations.
Such revenues have brought millions of dollars to Lake County over the past decade. In fiscal year 2014 alone, Lake County received more than $959,000 in geothermal royalties.
The funding has assisted Lake County with such projects as the purchase of more than 1,500 acres on Mt. Konocti that has been made into a county park. Geothermal royalties also have assisted in projects such as repairs at the new Gibson Museum and Cultural Center in Middletown.
But the funds are under a continual threat of cuts.
“If a county invests in developing geothermal energy, it deserves its fair share of returns on that investment,” said Thompson. “Robbing counties of this revenue is fiscally irresponsible and will do nothing to reduce our deficit. While the federal government will see no significant gain, our counties will be forced to go into deeper debt in order to pay for road repairs, law enforcement, and public safety. I will work with my colleagues on both sides of the aisle to make sure any budget passed by Congress doesn’t include these short-sighted geothermal cuts.”
Geothermal revenue sharing was first started through the bipartisan Energy Policy Act of 2005.
Congress decided that because of the high burdens geothermal production places on the counties where it is developed, the counties should share in the revenue.
Counties use geothermal revenues to pay for governmental services, such as road maintenance, public safety and law enforcement and conservation easements. Thompson's office said the loss of such revenue for these counties could result in the elimination or reduction of essential services.
Revenue sharing also has made counties vested partners in the continued development of geothermal energy – a clean, renewable and domestic energy source that provides jobs in rural areas.
Ending this sharing would negatively impact counties while having no meaningful deficit reduction impact, according to Thompson. Over a 10-year period, revenue sharing accounts for less than one tenth of 1 percent of the federal debt.
Thompson represents California’s Fifth Congressional District, which includes all or part of Contra Costa, Lake, Napa, Solano and Sonoma counties. He is a senior member of the House Ways and Means Committee and the House Permanent Select Committee on Intelligence.
State Controller Betty T. Yee announced that her public employee compensation Web site has been updated to include salaries of special district workers in 2013.
“Special districts in a sense are the most local form of government,” Controller Yee said, “so our new data should be of interest to communities that want to track the use of taxpayer dollars close to home.”
The Web site now includes five full years of data for special districts and for other local governments, including 58 counties and more than 450 cities.
Special districts are local agencies formed for a specific service, such as health care, public transit, recreation, irrigation, fire protection or cemetery maintenance.
The new data, which is unaudited, includes the salaries of 132,854 positions in 2,900 special districts, adding up to $6.43 billion in wages in 2013.
For this update, 98.6 percent of special districts submitted data on time.
Forty-one districts did not file on time. The list of districts failing to file is at http://www.sco.ca.gov/eo_noncompliant_special_districts.html#districts2013 .
Five districts provided incomplete records. Those noncompliant districts are Adelanto Public Utility Authority, Alameda County Medical Center, Los Angeles County Metropolitan Transportation Authority, Nevada-Sierra In-Home Supportive Services Public Authority and Tehachapi Valley Healthcare District.
Overall, the public employee compensation Web site – www.publicpay.ca.gov – now contains information on more than two million positions with $369 billion in wages and almost $100 billion in total benefits paid from 2009 through 2013.
In addition to local governments, the database includes salaries for most state employees, nearly 100 higher education providers, more than 600 school districts and other K-12 entities, 58 superior courts, 51 First Five commissions, and 35 fairs and expositions.
The site offers maps, search functions and custom report-building tools. It allows users to download raw data for their own research.
Since its launch in 2010, the Web site has registered more than 8.2 million page views.
NORTHERN CALIFORNIA – Assemblyman Bill Dodd (D-Napa) has introduced new legislation that will help repair and revitalize Clear Lake.
The bill, AB 367, would allocate $2.4 million for the purposes of restoring Clear Lake’s wetlands, maintaining its water quality, and preserving its ecosystem.
“Clear Lake is the heartbeat of Lake County, and it is time for the state to step up its investment in protecting this incredible environmental and economic resource,” said Dodd. “The lake helps fuel the local economy, provides outstanding outdoor recreation, and creates habitat for numerous plant and animal species.”
Clear Lake, California’s largest natural body of fresh water, is home to a number of fish species and boasts some of the best bass fishing in the nation. The lake supports other wildlife, such as pelicans, blue herons, egrets, ospreys and bald eagles.
However, over time, Clear Lake has developed a number of serious environmental problems that threaten the fish and wildlife of the lake, diminish the quality of water, and hinder recreational opportunities.
One of the problems facing Clear Lake is the presence of cyanobacteria, often referred to as blue-green algae, which can produce harmful toxins.
Another crucial challenge facing the Clear Lake is preventing the introduction of invasive quagga and zebra mussels into the lake.
“This legislation represents one important step towards greater investment in the future of Clear Lake,” said Dodd. “I am committed to advancing the health of the lake and ensuring the state is a good partner with our local communities in this effort.”
Dodd was joined in introducing the legislation by Sen. Mike McGuire, who is a principal co-author of the bill and represents Lake County in the State Senate.
Dodd represents the Fourth Assembly District, which includes all or portions of Colusa, Lake, Napa, Solano, Sonoma and Yolo counties.