Attorneys for a Newport Beach hand surgeon and his girlfriend accused of drugging a woman Monday have filed a motion. They argue that state prosecutors have failed to overcome the weakened case, following a preliminary hearing and judge’s ruling.
Judge Michael Leversen of Orange County Superior Court granted a motion on Aug. 28, dismissing some charges against Dr. Grant Robicheaux, 43, and Cerissa Riley, 36, but gave 10 days to file an amended complaint. The prosecutors from the Attorney General’s Office did so earlier this month. However, the defense attorneys have filed a demurrer motion to contest the newly refiled charges.
The main issue revolves around the refiled charges of poisoning a woman by drugging her alcoholic drink and whether they comply with the statute of limitations.
Prosecutors argue that the drugging incident is part of the same course of conduct as the original case, which alleged that the defendants drugged several victims to sexually assault them. The sexual assault charges were dismissed after the 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,” state the attorneys in the motion.
The defense attorneys argue that the “fatal flaw” in the government’s theory is that there was no kidnapping or assault. They state, “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, dismissing felony counts of poisoning and the sale of phencyclidine against Robicheaux and Riley. He also dismissed a felony count of sale or transport of cocaine against Riley.
The defense attorneys further argue in their recent filing that the prosecution’s own drug expert testified in the preliminary hearing that cocaine is a stimulant, not a depressant, and PCP would not help to subdue a victim.
Robicheaux still faces misdemeanor drug charges as well as felony counts of possession of an assault weapon. Riley no longer faces any charges, until state prosecutors essentially refiled the same charges.
Multiple former and current prosecutors, speaking on background, have stated that the state Attorney General’s Office could dismiss the current case and refile it, starting the process anew.
Lawrence Rosenthal, a law professor at Chapman University, agrees. “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.”
Rosenthal adds that prosecutors can only refile if the case has been dismissed twice.
“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 stated, “As this is an ongoing case, we are unable to comment on potential legal strategy.”
Murphy previously attempted to have a special prosecutor assigned to the case, but that was denied by another judge, who has since passed away. The case was then reassigned to Judge Leversen.
If the case is dismissed and refiled, prosecutors would also have the opportunity to seek a grand jury indictment, allowing them to bypass another preliminary hearing. The decision to reassign the case would rest with the presiding judge in Orange County.
On September 25, Judge Leversen will once again consider a demurrer motion from the defense attorneys, which could lead to the dismissal of the case against Riley and most of the case against Robicheaux.
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