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OC Superior Court Judge dismisses criminal case against Coyotl Tezcatlipoca

by Deport Allan Mansoor! Tuesday, Oct. 02, 2007 at 8:18 PM

Judge throws out case because Costa Mesa’s city attorney never took an oath as a public prosecutor; civil rights case still pending.

The Daily Pilot (Costa Mesa)

http://www.dailypilot.com/articles/2007/10/02/publicsafety/dpt-acosta02.txt

Updated: Oct 01, 2007 - 22:06:19 PDT

Acosta case dismissed

Judge throws out case because Costa Mesa’s city

attorney never took an oath as a public prosecutor;

civil rights case still pending.

By Alicia Robinson

The city of Costa Mesa’s only hope of reviving a

case against student activist Benito Acosta is in

appellate court, after Orange County Superior Court

Judge Kelly MacEachern on Monday threw the case out

because of the city prosecutor’s failure to get

sworn in before filing the charges in 2006.

In a trial that began Thursday, the city was pursuing

three misdemeanor charges, alleging Acosta violated

city code at a Jan. 3, 2006, City Council meeting.

Acosta, 26, who also goes by the name Coyotl

Tezcatlipoca, was speaking against a city plan to

enforce immigration law. Mayor Allan Mansoor cut him

off when he urged people, over the mayor’s

objections, to show their support by standing up.

Police then escorted Acosta from the chambers and,

after a brief struggle, arrested him.

City Prosecutor Dan Peelman is a private attorney with

Jones & Mayer, the firm that provides Costa Mesa’s

city attorney. The fact that he never took an oath as

a public prosecutor came to light Friday in the

judge’s chambers, when MacEachern asked him if

he’d been sworn in. Peelman said he hadn’t,

according to attorneys.

Peelman was sworn in as a prosecutor at 8:15 a.m.

Monday by the Costa Mesa city clerk, but that didn’t

satisfy MacEachern. She told him the state

constitution required him to take an oath as a public

prosecutor in order to file and argue the case. The

fact that he got sworn in Monday was “somewhat of a

tacit admission that the oath was in fact

necessary,” she said. “This isn’t a harmless

error. This is a constitutional issue.”

Outside the courtroom, Acosta smiled but made few

comments, other than to say he looks forward to

returning to school and getting on with his life.

His attorneys said the fact that the case was

prosecuted has made people less likely to speak out to

the City Council, and they don’t believe the point

was to seek justice. A civil rights case against the

city, filed for Acosta by the ACLU, is pending.

“I think the [city’s] primary motivation was the

federal lawsuit and to try to convict him of something

to cut their losses,” attorney B. Kwaku Duren said.

The Orange County District Attorney in 2006 declined

to file charges alleging penal code violations,

including interfering with a police officer and

battery of a police officer.

Peelman said he’s prosecuted cases for other cities

and never had to take an oath before. He got sworn in

Monday simply to satisfy the court, he said — not

because he agreed that the oath was required.

The city can’t bring the same charges against Acosta

again, Peelman said, but before the judge’s ruling

Monday he asked an appellate court for an injunction

to prevent the case from being dismissed. If the

appellate court finds the dismissal was in error, the

case could be revived, but whether the city will want

to go forward is unclear.

City Councilwoman Katrina Foley declined to comment

because litigation is still pending.

Attempts to reach Mansoor Monday were unsuccessful.

The ACLU’s civil case is now in the discovery phase.

ACLU attorney Belinda Escobosa Helzer, who was

co-counsel for Acosta, said it will likely move faster

now that the criminal case has been resolved.

POLL

Should Costa Mesa move forward if the Acosta case is

revived? Go here to vote. To further express your

opinion, e-mail dailypilot@latimes.com. Please spell

your name ,and include your hometown and phone number

for verification purposes only.

TIMELINE

It took almost two years for student activist Benito

Acosta to be tried on charges stemming from his arrest

at a Jan. 3, 2006, Costa Mesa City Council meeting.

The case was thrown out by a judge Monday.

Dec. 6, 2005

Costa Mesa City Council considers and approves a

proposal to have city police trained to enforce

federal immigration law.

Jan 3, 2006

The community responds to the proposal vehemently,

both for and against it. student Benito Acosta, using

the name Coyotl Tezcatlipoca, protests the plan at a

council meeting, disobeys the mayor’s orders,

scuffles with police and is arrested.

February 2006

Orange County District Attorney spokeswoman Susan

Schroeder says the D.A. will not file charges against

Acosta for resisting arrest and battery of an officer,

but the city can pursue a remaining alleged municipal

code violation.

March 2006

The ACLU files a lawsuit against the city, alleging

Acosta’s civil rights were violated.

May 2006

City Prosecutor Dan Peelman files charges against

Acosta for three municipal code violations stemming

from the January meeting.



Sept. 27, 2007

The People vs. Benito Acosta comes to trial, after a

one-month delay because Peelman was on medical leave.

Oct. 1, 2007

The trial is thrown out by a judge because Peelman

failed to be sworn in as a public prosecutor prior to

filing the case. The case filed by the ACLU is still pending.

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