Perjury counts against former deputy sheriff dismissed | February 7, 2018 | Almanac | Almanac Online |

Almanac

News - February 7, 2018

Perjury counts against former deputy sheriff dismissed

• DA's evidence against one-time sheriff candidate was lacking, judge concludes.

by Dave Boyce

A San Mateo County Superior Court judge has again dismissed some of the criminal charges by the District Attorney's Office against Juan Pablo Lopez, a former Sheriff's Office deputy and a 2014 write-in candidate for sheriff.

Judge Donald Ayoob on Jan. 25, acting on a motion to dismiss the charges against Mr. Lopez, tossed the following three counts of perjury:

• Two counts of offering a false or forged document with the intent of committing fraud. The judge could not find a reasonable inference in the evidence presented at the preliminary hearing that the documents were false, according to Maria Belyi, an attorney representing Mr. Lopez and a member of San Francisco-based Pier 5 Law.

• One count of making a false statement under oath concerning an income report for the 2014 election year. The judge could not find evidence of unreported income as presented, Ms. Belyi said.

Mr. Lopez, 54, still faces — and has pleaded not guilty to — one count of theft by false pretenses, two counts of mortgage fraud, one count of conspiracy to commit a crime, one count of filing a false nomination paper or declaration of candidacy, one count of voting where he was not entitled to vote, and one count of embezzlement, according to a report by District Attorney Steve Wagstaffe.

High deference?

Judge Ayoob, by his actions at the motion-to-dismiss hearing, concluded that, unlike the remaining counts, the perjury counts did not show a factual basis for taking them to a jury, Ms. Belyi said.

The judge at motion hearings is supposed to give "high deference" to the judge who presided at the preliminary hearing — in this case, Judge Lisa Novak — and who allowed the charges to go forward, Ms. Belyi said.

"Our burden was pretty high, so we're happy that the three charges got dismissed," she said. "We're preparing for the pretrial conference in March and the trial in May."

Sean Gallagher, the deputy district attorney overseeing the prosecution, said Judge Ayoob used his own analysis to find insufficient evidence for the perjury counts.

"This evidence has been hashed out in front of an experienced judge who was there to test that there was probable cause," Mr. Gallagher said. "She found that there was probable cause to stand trial and answer for all nine of these felonies."

"The reviewing judge is supposed to defer to the findings of the magistrate (Judge Novak), absent clear error," Mr. Gallagher added. "We just don't think it was even close."

Despite the dismissals, the core of the case "is still there. In that respect, it's still intact," he said. "We're still sorting out what we're doing on the three counts, but we're moving forward and looking forward to the May jury trial."

Defending Mr. Lopez with Ms. Belyi is famed San Francisco criminal defense attorney J. Tony Serra, also of Pier 5 Law. Ms. Belyi said she and her colleague see this case as retaliation on the part of the county against Mr. Lopez after he ran for sheriff.

It's the second time in two months that Judge Ayoob has seen fit to dismiss charges against Mr. Lopez. In December, he dismissed two counts of conspiracy, also brought by the county and to which Mr. Lopez had pleaded not guilty.

As a sheriff's deputy — Mr. Lopez is now retired — he had been assigned to the county jail. He'd been charged in December 2014 with conspiring with corrections officers and a gang-affiliated jail inmate to smuggle in two cellphones and Oxycontin over several months, and to allow the inmate to use the phone openly in the jail.

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