OC District Attorney records obtained by Voice of OC contradict its public statement for why prosecutors did not file DUI hit-and-run charges against Santa Ana police Sgt. Gerry Serrano, who now leads the city’s influential officers’ union.
While the statement cited the lack of a blood test, data obtained under the California Public Records Act shows the DA’s office routinely files DUI cases against people who refuse blood or breath tests after they’re arrested on suspicion of driving under the influence.
Serrano refused to submit to a blood test, after he crashed into another car, slurred his speech, and was arrested for misdemeanor DUI hit-and-run, according to the police reports, which note audio and video evidence.
More than 2,300 “DUI refusal” cases have been filed since 2011, including eight in the month of Serrano’s arrest, according to the data.
After reviewing the police reports, new District Attorney Todd Spitzer said Serrano should have been charged.
“I absolutely would have filed it,” Spitzer told Voice of OC in an interview Monday. “We file those cases every single day in our sleep. That is a classic DUI refusal.”
“He got a break, for whatever reason – whether he knew somebody, whether he was police officer, or he had connections, I don’t know. But he caught a break. There’s just no doubt about it based upon that police report,” Spitzer added.
“If he was Joe Citizen, that case would have been filed against him.”
Serrano declined Monday to say if he disputes the police reports, but previously emphasized the DA’s office declined to file charges.
“In 2011, I was involved in a non-injury traffic accident, and it was determined I did not break the law,” Serrano told the OC Weekly last fall. “My record is clean,” Serrano told the Weekly.
Former DA Tony Rackauckas, who oversaw the prosecutors’ office at the time of Serrano’s arrest, said he had not reviewed the police reports but that he was confident it was handled appropriately.
“This was a case that was handled in the ordinary course of business,” Rackauckas said in an interview Monday evening, adding he had no knowledge of the case until years later, in fall 2018.
“I really do not think that the Gerry Serrano got any special treatment from the reviewing [deputy district attorneys] in our office. And I’ll tell you, I think on the contrary, that they would be just as happy to file a case,” Rackauckas said.
“If you had a police [department] wanting to have a DUI filed against a police officer, I don’t think they wouldn’t have had any hesitancy doing it if the evidence was sufficient.”
Westminster police recommended two misdemeanor charges against Serrano after he rear-ended another car in October 2011, left the scene, slurred his speech in front of officers, was arrested, and refused to take a blood test, according to the police reports. Multiple officers recorded audio of Serrano’s statements and booked it as evidence, according to the reports.
The investigation determined Serrano “was driving while impaired by alcohol,” police wrote in their report.
The DA’s office ultimately declined to file charges against Serrano, whose wife has worked at the DA’s office since the 1990s. She was an investigative assistant at the time of Serrano’s crash, a position she continues to hold.
The statute of limitations for filing misdemeanors in the case expired on year later, in 2012. Serrano went on to become president one of the largest police unions in California starting in 2016, and assisted Rackauckas’ re-election campaign last year by posing in uniform in ads with Rackauckas.
In a statement days before the November 2018 election, the DA’s office cited two reasons for not filing charges against Serrano.
“A [field sobriety test] was not conducted and blood was not taken, so there was no evidence to prove the case beyond a reasonable doubt,” the DA’s statement said.
Three months after Spitzer took office in January, the DA’s office again pointed to the fall statement as its comment about why it declined to file against Serrano. The November statement, according to Rackauckas’ then-chief of staff, Susan Kang Schroeder, was based on information by Senior Deputy DA Ebrahim Baytieh, who remains a high-ranking DA manager.
The police reports, however, said Serrano started to take a field sobriety test, failed the first attempt, and then refused to take any more sobriety tests. Officers said they recorded this on audio they booked into evidence.
And official data Voice of OC obtained under the California Public Records Act shows the DA’s office has filed more than 2,300 DUI cases since 2011 against people who refused breath or blood tests after being arrested for DUI. They’re known as “DUI refusal” cases.
The month of Serrano’s arrest, the DA filed DUI charges against eight people who refused blood or breath tests, all of which resulted in guilty pleas, according to the data.
California jury instructions cite refusal of a breath or blood test as evidence of DUI when combined with other evidence. The police reports said they had audio recordings of Serrano after the crash, when they said he was slurring his speech, warning officers not to come to Santa Ana, and refusing to complete a field sobriety test.
“[There] certainly was evidence of driving while intoxicated — the observations of the arresting officer reflected in the police report, coupled with the evidence that Mr. Serrano refused to cooperate with the field sobriety test and submit to a breathe or blood-alcohol test, which, as the California pattern criminal jury instructions make clear, can be used as evidence of consciousness of guilt, although in themselves would be insufficient evidence,” said Lawrence Rosenthal, a former federal prosecutor who teaches criminal law at Chapman University.
“For that reason, it is not accurate to state that ‘there was no evidence to prove the case beyond a reasonable doubt.’ There is certainly room to debate the likelihood of conviction – an accurate assessment would require interviewing the arresting officer to determine the precise strength of his testimony and how it would fare under cross-examination,” added Rosenthal, who served as a U.S. Supreme Court law clerk.
“The statement that there was ‘no evidence’ that could support a conviction, however, appears, based on the police report, to be incorrect.”
Spitzer disputed the prior DA statement that there was a lack of proof.
“After reviewing the police reports and the evidence in the case, I just don’t see any proof problems. And these are the kinds of cases this office files every single day in this county,” Spitzer said.
Spitzer said his office initially re-iterated the prior administration’s statement in April because he hadn’t yet had a chance to review the police reports.
“At the time, being new in office, we’re kind of being asked to comment on things that happened before I took office. So back in April, it was just [that] we hadn’t been here that long, we hadn’t had time to review things,” Spitzer said.
“And now I’ve had time to look at the police reports, look at the case, and form my own opinion. Something happened in this office, and I don’t feel it was just a prosecutor making a call,” he added. “That’s not a case you reject.”
Attorney General Xavier Becerra’s press secretary didn’t return a phone message asking if the AG has investigated the DA’s handling of the Serrano case.
A longtime prosecutor managing the DA’s special prosecutions unit, Baytieh has continued to oversee decisions on whether to file charges against officers for shootings and jail deaths.
In response to Voice of OC’s inquiries, Baytieh said he didn’t hear about the case until 2018, years after the prosecution decision. Baytieh said that last fall he simply provided a computer printout of DA case information to the spokeswoman who was writing the office’s statement, and told the spokeswoman he didn’t know anything about the case.
Among the 2,300 DUI refusal cases since 2011, the overwhelming majority – 97 percent – resulted in a conviction, mostly through guilty pleas, according to the DA data.
California jury instructions for DUI cases state, “the law requires that any driver who has been [lawfully] arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.”
The instructions add that judges can tell juries in DUI cases “that refusal to submit to a chemical analysis for blood alcohol content may demonstrate consciousness of guilt.”
Westminster police collected audio and video of Serrano’s refusal to take the blood test after he was arrested, according to the police reports.
Audio was also recorded by at least one officer of their attempt to administer a field sobriety test to Serrano that he ultimately refused, according to the reports.
A month after Serrano’s arrest, another man was arrested in Orange County for DUI hit-and-run and refusing a breath or blood test, according to the DA data.
Prosecutors charged the man with the same two crimes Westminster accused Serrano of. He pled no-contest and was sentenced to one day in jail, 129 hours of community service, six months of an alcohol program for first-time offenders, and three years of probation.
Refusing the blood or breath test also leads to a one-year driver’s license suspension, according to state law.
Westminster Police Officer Paul Walker and Corporal Cameron Knauerhaze, a supervisor, wrote in their reports that Serrano’s speech was slurred when they spoke with him after the crash, and that he smelled of alcohol.
Serrano was released from Westminster’s city jail a few hours after his arrest and was issued a citation for misdemeanor DUI.
Within nine days of Serrano’s arrest, a DA official working on the case was told Serrano’s wife worked for the DA’s office, according to an email by the official on Oct. 18, 2011. The DA’s office released the email, with the official’s name redacted, to Voice of OC in response to a Public Records Act request.
The DA’s office declined to name the prosecutors who decided not to file charges against Serrano, citing an “Official Information privilege.”
“There is strong public interest in prosecutors remaining free of outside influence and concerns in making charging decisions,” states the DA’s official response on May 8 by Deputy District Attorney Denise Hernandez of the special prosecutions unit, which Baytieh manages.
Serrano is widely described as among the most influential people at Santa Ana City Hall and recently led the union’s successful effort to win a $25 million raise for officers.
A longtime sergeant, Serrano in 2016 became president of the police union, which is by far the largest campaign spender on City Council elections in the city. Council members supervise the city manager, who in turn oversees the police chief.
Santa Ana police and their union have a close relationship with the DA’s office, according to current and former Santa Ana police and a DA official. Several of the DA’s investigators are former Santa Ana police officers, according to state data, and a large share of the DA’s criminal cases come from Santa Ana police.
The DA’s investigations chief from 1999 to 2009 was Don Blankenship, who previously served for more than a decade as the president of the Santa Ana police union Serrano now leads. The current DA investigations chief is Santa Ana’s longtime former police chief, Paul Walters.
The DA’s office says it has no record of asking the state Attorney General’s office if it was a conflict of interest for DA officials to decide whether to prosecute their coworker’s spouse. If there is a conflict, the AG’s office typically prosecutes the case.
Attorney General staff also said they could find no record of the Orange County DA asking if the Serrano DUI case presented a conflict of interest.
Rackauckas, in the interview Monday, said usually the DA’s office would call the AG’s office about cases involving employees’ spouses or children, and that the AG’s office usually would let the DA’s office handle it.
“We would make the call to the attorney general’s office…It likely wouldn’t make any difference, because typically the Attorney General’s office would say…go ahead and handle it,” Rackauckas said.
Baytieh, the senior prosecutor who provided information for the Serrano statement, took on a high-profile role defending the DA’s office after a judge found prosecutors had systemically misused informants, in what become known as the “snitch scandal.”
Judge Thomas Goethals, in a March 2015 ruling, kicked the entire DA’s office off a mass murder case and found sheriff’s deputies “either intentionally lied or willfully withheld material evidence from [the] court.”
At a highly-attended public debate later that year, Baytieh said no one at the DA’s office intentionally hid evidence.
“The notion that there is any effort on anybody’s part, at any level, to intentionally hide evidence…is from our perspective absolutely false,” Baytieh said at the October 2015 debate at Chapman University’s law school.
However, an appellate court later found the DA’s office had participated in “intentional or negligent” withholding of information they were required to provide defendants.
In its November 2016 appeals court ruling, which examined he same testimony Goethals did in his March 2015 ruling, described what it called “the OCDA’s intentional or negligent participation in a covert [informant] program to obtain statements from represented defendants in violation of their constitutional rights, and to withhold that information from those defendants in violation of their constitutional and statutory rights.”
Additionally, it found two sheriff’s deputies had testified falsely in a court hearings about the issue, by concealing the existence of a key computer system that documented how inmates were moved.
“There was overwhelming evidence supporting the trial court’s conclusion [that the two deputies] intentionally lied or willfully withheld information at the first hearing,” the appeals court found.
At least six convictions for serious crimes have been overturned or dismissed as a result of the informants scandal. In one case, the DA agreed to a rare plea deal granting a murder defendant probation instead of jail time.
Clarification: This article has been updated to clarify statements from the District Attorney’s Office and appeals court in 2015 and 2016 regarding the informants scandal.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.