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Order Vacating Child-Abuse Convictions Was Unjustified
Opinion Says Deputy District Attorney’s Failure to Reply in Writing to Defendant’s Motion, Containing Bare Assertions of New Evidence of Actual Innocence, Did Not Justify Upending Judgment
By Kimber Cooley, associate editor
Div. Three of this district’s Court of Appeal has held that a trial judge erred in summarily granting a defense motion to vacate the convictions of a youth basketball coach, who sent messages soliciting sex from elementary school boys, based on the prosecutor’s failure to file any written response to the request, saying that requiring a reply would be inconsistent with the fact that the burden is on the defendant to show entitlement to relief.
In an unpublished opinion, filed Tuesday and authored by Justice Anne H. Egerton, Div. Three reversed the order. Presiding Justice Lee Edmon and Justice Rashida A. Adams joined in the opinion.
Los Angeles Superior Court Judge Darrell Mavis issued the order on Oct. 5, 2023, approximately three months after defendant Jesse James Palato filed his motion under Penal Code §1473.7(a)(2), which provides that “[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence” upon the discovery of new evidence of actual innocence.
At trial, Los Angeles County Deputy District Attorney Melanie Buccat presented evidence that, in 2012, the defendant sent messages to an 11-year-old child on his team asking if the child was “gay or bi or curious.” Testimony was presented indicating that the defendant later offered another child on his team fireworks in exchange for sex and had asked an eight-year-old boy if he would agree to engage in a sexual act.
A jury convicted him of annoying or molesting a minor, in violation of Penal Code §647.6(a)(1), and of contacting a minor with the intent to commit a sexual offense and attempting to arrange a meeting with a minor for lewd purposes, as prohibited by Penal Code §§288.3(a) and 288.4(a)(1).
Then-Los Angeles Superior Court Judge Stanley Blumenfeld Jr., now a member of the U.S. District Court for the Central District of California, sentenced Palato to one day shy of four years in prison. In 2017, his conviction was upheld on appeal.
New Evidence
Palato’s §1473.7 motion, filed in July 2023 without the assistance of counsel, did not detail what “new evidence” had been discovered. He asserted that Blumenfeld had erred in instructing the jury on intent but explained that he could not say for sure what new evidence would rebut the element because the prosecution was never required to prove it in the first place.
The motion was calendared for a hearing in October 2023. At the hearing, Deputy District Attorney Thomas Krag indicated opposition to the motion.
Pointing out that the request was filed months earlier, Mavis said that “the People, when they receive a motion that’s filed in writing, under the Rules of Court, need to reply in writing, and I don’t have a response by the People.” Krag remarked, “Let’s have a hearing” and pointed out that “It’s not my burden of proof.”
Unmoved by the suggestion, Mavis declared that “the motion to vacate the conviction is granted, and that is simply because of the People’s failure to respond in a timely way and not expressing any intent whatsoever to file a response.”
He commented that “we have had this discussion numerous times where the court has indicated that it expects a written response to a defen[dant]’s motion that’s been filed in writing” and “[o]therwise, I’m assuming that the People are conceding that they don’t have a response.”
No Requirement
Egerton wrote:
“On appeal, the People assert the trial court erred because there is no authority requiring them to file a written response to a motion under section 1473.7. We agree.”
She pointed to subd. (e)(1) of the section which provides that “[t]he court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds…specified in subdivision (a)” and concluded that the defendant bears the burden to demonstrate entitlement to relief.
Under these circumstances, the jurist opined:
“The People state they are not aware of any rules or statutes that required a response, Palato does not cite any, nor have we found any in our own research. Indeed, such a requirement would seem to be inconsistent with the fact that section 1473.7 places the burden on the defendant to produce evidence showing he is entitled to relief….Accordingly, the trial court erred by summarily granting Palato’s motion based on the People’s failure to file a response.”
Egerton continued:
“The trial court summarily granted Palato’s motion because the People failed to submit a written response to it and did not express an intention to do so. While the court was justifiably frustrated with the prosecutor, absent authority requiring the People to file a response, that frustration did not provide sufficient grounds to grant Palato’s motion.”
Noting that it is unsettled what standard of review applies to an order on a motion filed under §1473.3, she said “we need not decide that issue, because reversal is required under both standards of review.”
No Concession
Palato, in his brief on appeal, points to an interchange during the hearing in which he claims that Krag conceded to the motion. Unpersuaded, the justice wrote:
“Palato points to the prosecutor’s remark, ‘[t]hat’s fine,’ after the court stated, ‘I would just assume the People are conceding.’
“It is not clear what the prosecutor meant by that remark. However, we are confident he did not intend to concede the merits of Palato’s motion. The minute order of the hearing states the court granted Palato’s motion ‘[o]ver the People’s oral objection,’ which is consistent with the prosecutor’s other statements at the hearing….The prosecutor…urged the court to conduct the hearing that day, and he suggested he was skeptical that Palato could meet his burden of proof. On this record, it is apparent the prosecutor did not intend to concede the merits of Palato’s motion.”
Egerton added that “[b]ecause the trial court summarily granted the motion…, Palato never had the opportunity to present that evidence” and declared that “we reverse the order and remand the case for the court to hold an evidentiary hearing.”
The case is People v. Palato, B334957.
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