SAN DIEGO - A Superior Court judge on Tuesday overturned convictions on two counts against a former San Diego police officer who sought a new trial because handwritten notes from his main accuser were not turned over to the defense.
Judge Jeffrey Fraser wrote in his 12-page ruling that he was not confident a jury would have convicted 18-year veteran Anthony Arevalos on those counts if his defense team had access to the notes.
Arevalos was sentenced to nearly nine years in prison for sexually assaulting and harassing women during DUI traffic stops in the Gaslamp District.
The judge said Arevalos should be resentenced on the remaining counts on which he was found guilty.
Arevalos was convicted in November 2011 of felony and misdemeanor charges involving five women, including multiple counts of sexual battery by restraint, asking for a bribe and assault and battery by a police officer. He was acquitted of other serious charges involving two other women.
The 4th District Court of Appeal ordered a hearing before Fraser to determine whether Arevalos should get a new trial because notes written by "Jane Doe" right after her encounter with the defendant were not turned over to the defense at trial.
The notes surfaced during a federal lawsuit the woman has filed against the city of San Diego.
Nowhere in the handwritten notes does she say that Arevalos actually touched her genitalia, the defendant's appellate attorney, Pat Ford, argued before Fraser.
Arevalos' trial attorney, Gretchen von Helms, testified that the notes would have been key in defending Arevalos, since he did not admit touching Jane Doe's genitalia during a "pretext" call set up by police.
"He doesn't say I touched it," von Helms testified at the hearing. "These notes would have given me ammunition. This is very powerful. I'm supposed to have it. It would be huge that he didn't touch her."
While Arevalos did not explicitly say that he touched Doe's genitalia, the conversation the two had during the "pretext" call was graphic. Here are some excerpts:
Jane Doe: "So what's your favorite? Which was your favorite?"
Anthony Arevalos: "Let's just say, I tell you what, your v***** was very nice. Put it that way."
Anthony Arevalos: "You know what I liked best was when the shirt came up and the pants went down. I didn't expect your body to be as nice and wonderful as it was."
Anthony Arevalos: "The initial time that I, that certain moment that I touched you, the skin texture, the way it felt, everything was like perfect."
Jane Doe: "My v***** right? When you touched that?"
Anthony Arevalos: "I mean, I ... what do you want me to tell you?"
Deputy District Attorney Martin Doyle argued that the notes not being produced was not enough to warrant a new trial for Arevalos. The prosecutor noted that Jane Doe didn't initially tell her boyfriend or others about being touched by Arevalos, but jurors still found her testimony credible.
Doyle said mistakes are often made by both sides at trial, many of them resulting in harmless error.
"He (Arevalos) was entitled to a fair trial, not a perfect one," Doyle told the judge.
The prosecutor said having Jane Doe's notes wouldn't have made a difference in the jury verdict.
Fraser, however, wrote that "the omission of the vaginal touching from her notes supports the claim Jane Doe fabricated the sexual battery offense in order to bolster the criminal case and her civil suit against (the city)."
He also wrote that because she was the only live witness to any alleged vaginal touching, "she was such a critical prosecution witness that if the jury did not believe her, the jury would not have convicted (Arevalos) on these counts."
The judge noted that the defense might have been alerted to the notes' existence by a police sergeant's statement, so it does not appear that prosecutors intentionally withheld them.
The attorney for Jane Doe says that his client is crushed. Attorney Browne Green said she is horrified by what the judge ruled.
"The ruling that came out today … she's threatened by it. She's afraid," said Green.
10News contacted the San Diego County District Attorney's Office to assess what happens from here. Spokesman Steve Walker released a statement to 10News, which read, "The District Attorney's Office disagrees with, and will appeal today's ruling. Our focus is on making sure this defendant continues to be held accountable for the sexual assaults he committed against multiple victims."
It could mean the possibility of a retrial, said Walker.
10News also contacted Arevalos' attorney in that sex assault trial, Jan Ronis. He says Jane Doe's notes are evidence that should have been shared with the defense during the trial.
"This is a very controversial case … in a series of cases in San Diego that's caused the police chief to resign," said Ronis. "Given the atmosphere in which the judge was called upon to make this decision, it was the right decision … one that he had to make courageously and I'm sure there is going to be a backlash."
The two counts in question were sexual battery by restraint and assault and battery by a peace officer. Arevalos was given three years on the sexual battery conviction and a consecutive eight months for assault and battery.
10News Team 10 Investigator Mitch Blacher contributed to this report.