A Superior Court judge 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 admitting 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."
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 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.
