Attorneys for a Newport Beach hand surgeon and his girlfriend accused of drugging a woman Monday filed a motion arguing state prosecutors have again failed to overcome a hollowing out of the case following a preliminary hearing and judge’s ruling.
Orange County Superior Court Judge Michael Leversen on Aug. 28 granted a motion that dismissed some of the charges against Dr. Grant Robicheaux, 43, and Cerissa Riley, 36, but he gave them 10 days to file an amended complaint. The prosecutors for the Attorney General’s Office did that earlier this month, but the defendants’ attorneys again filed a demurrer motion to kick the newly refiled charges.
At issue is whether the refiled charges of poisoning a woman by putting drugs in her alcoholic drink can stand up to a statute of limitations challenge.
Prosecutors have argued that the dosing of the drink was part of the same course of conduct in the originally filed case which alleged the defendants knocked several victims out to sexually assault them. The sexual assault allegations were thrown out following a preliminary hearing.
“To be clear, these newly pled facts consist of the very same factual allegations that the AG argued in its opposition to the prior demurrer — in other words, there are no new facts or allegations in the (first amended information) underlying the theory of tolling that this court has not already considered,” the attorneys say in the motion.
The attorneys argued that the “fatal flaw” in the government’s theory is “There was no kidnapping and there was no assault… One cannot facilitate something if the thing they are facilitating did not exist — you can’t facilitate the effectuation of a bank robbery if there was no bank and there was no robbery, and you can’t facilitate a kidnapping and an assault if neither ever took place.”
Leversen granted a demurrer motion last month that dismissed felony counts of poisoning and the sale of phencyclidine against Robicheaux and Riley, and a felony count of sale or transport of cocaine against Riley.
The defense attorneys further argued in the most recent filing that the prosecution’s own drug expert testified in the preliminary hearing that cocaine is a stimulant, not a depressive, and PCP would also not help with subduing a victim.
Robicheaux still faced misdemeanor drug charges as well as felony counts of possession of an assault weapon. Riley no longer faced any charges until state prosecutors essentially refiled the same charges.
Multiple former and current prosecutors speaking on background told City News Service that the state Attorney General’s Office could dismiss the current case and refile, starting the process all over again.
Chapman University law professor Lawrence Rosenthal agreed.
“If they refile it is a new case,” Rosenthal said. “But the statute of limitations can still apply if the statute is running, and then a new charge would be blocked.”
Unless the case was dismissed twice then prosecutors can refile, Rosenthal said.
“They could absolutely do that,” said attorney Matthew Murphy, who represents some of the accusers and is a retired prosecutor. “Whether they will do that is another question.”
The Attorney General’s media office said, “As this is an ongoing case, we are unable to comment on potential legal strategy.”
Murphy attempted to have a special prosecutor assigned to the case previously, but that was denied by another judge, who has since died, prompting a reassignment to another judge, who declared a conflict. Leversen was the next judge who presided over the case.
A dismissal and refiling of charges would allow prosecutors a chance to also seek a grand jury indictment, the attorneys said. That would allow prosecutors to sidestep another preliminary hearing. It would be up to the presiding judge in Orange County to decide whether the case would be reassigned to a new judge.
Leversen on Sept. 25 will again consider a demurrer motion from defense attorneys that would again lead to the dismissal of the case against Riley and most of the case against Robicheaux.