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Appeals court overturns Richard Alarcon's conviction in residency case

A panel of justices Wednesday threw out the perjury and voter fraud convictions of former L.A. City Councilman Richard Alarcon and his wife, ruling that the trial judge had issued improper jury instructions.

Alarcon, a veteran San Fernando Valley politician, and his wife, Flora Montes de Oca Alarcon, were indicted in 2010 and found guilty in 2014 of lying about where they lived so Alarcon could run for a seat on the Los Angeles City Council. Alarcon was a councilman until 2013, when he stepped down because of term limits.

The justices on California's 2nd District Court of Appeal found fault with Los Angeles County Superior Court Judge George Lomeli's handling of the instructions, writing that "we cannot conclude that the instructional error was harmless beyond a reasonable doubt."

Alarcon, 62, said the case had been costly, both in terms of legal bills and the effect it had on his political career. The politician, who lives in Mission Hills, attributed his defeat in a state Assembly race in 2012 to the bad publicity generated by the criminal case.

"I feel incredible. I'm very pleased that the appellate system works," Alarcon said Wednesday. "We never felt we did anything wrong. It doesn't diminish the damage that was done, but we'll take the victory at this point."

Alarcon was convicted of three voter-fraud charges and one perjury charge, but acquitted on 12 other counts. Montes de Oca Alarcon, 50, was convicted of two voting charges and one perjury count but acquitted on two others.

Instead of serving a 120-day jail sentence, Alarcon served time under house arrest. His wife was sentenced to community service.

Prosecutors will have to decide whether to retry the case in state court, seek a rehearing in the court of appeal or pursue an appeal with the state Supreme Court, said Richard Hasen, a law professor at UC Irvine.

Hasen said he isn't surprised that the convictions were overturned, since the legal definition of residency is "so murky."

"Figuring out what counts as domicile ... is so difficult, it provides a basis for plausible legal arguments" that can be used in challenging a conviction, he said.

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Los Angeles County Dist. Atty. Jackie Lacey said in a statement that her office is "reviewing the opinion and deciding on our options."

Because of the felony convictions, Alarcon had been barred from holding elected office. Once Wednesday's ruling goes into effect, "presumably he can run for office again," Hasen added.

Alarcon, who now works as a consultant, said he has no intention of seeking another elected office.

California law requires that candidates live in the districts they seek to represent. The state Elections Code defines residence for voting purposes as a "domicile," a home where one intends to remain and return to after an absence.

The Alarcons were accused of falsely claiming they lived in Panorama City, in the district Alarcon ran to represent, while actually residing five miles away in Sun Valley -- in a different council district.

During the monthlong trial, defense attorneys told the jury that the Alarcons were staying in Sun Valley while renovating the Panorama City home -- considering it their permanent residence -- and planned to return to it once the work was done.

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Deputy Dist. Atty. Michele Gilmer presented evidence suggesting that the Alarcons didn't plan to return to the Panorama City home, including blueprints from 2007 for developing the home into a multiunit residential complex.

The jury also heard testimony from a police officer who said that Alarcon had been gone from his residence so long that a squatter moved in and changed the locks. Utility workers told the jury there was no gas used in the house between April 2007 and February 2009, making it impossible to cook, heat the home or take hot showers.

After five days of deliberations, the jury sided with the prosecution, saying they weren't convinced the Alarcons really intended to live in Panorama City. One juror said at the time that it was clear Alarcon had sought "political gain" by saying he lived in that neighborhood.

The Alarcons appealed the conviction, arguing that one line of instruction from the judge misled the jury.

Lomeli, the Superior Court judge, told the jury there is a "rebuttable presumption" that an officeholder must have lived in a residence sometime in the preceding year for it to be considered his or her "domicile."

Alarcon's attorneys argued that this instruction improperly led the jury to rule in the prosecution's favor.

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The judge should have advised the jury that not living in the home for a year is not necessarily proof that the defendants weren't domiciled there, the appeals court justices said in their decision.

That error improperly reduced the amount of evidence the prosecution had to provide, according to Wednesday's ruling. The way the convictions were handed down showed the effect of the erroneous jury instructions, the judges wrote.

The charges against the Alarcons spanned from 2006 to 2009. The jury acquitted Alarcon and his wife of charges from 2006 to October 2008, but convicted them of charges starting in November 2008.

According to the appeals panel, jurors probably made those choices because the prosecution showed the Alarcons were absent from the Panorama City home starting a year before that -- around November 2007.

"Given these circumstances, we cannot conclude that the instructional error was harmless beyond a reasonable doubt," the justices wrote.

Hasen, the election law expert, said prosecutors might have a "harder time" retrying the case because the jury instruction won't be delivered in the same way.

Alarcon is one of several politicians to be targeted in recent years over the issue of residency.

Six months before Alarcon was convicted, a jury in a similar case found former state Sen. Roderick Wright guilty of felony perjury and voter fraud. Wright also filed an appeal.

Prosecutors also have secured convictions in residency cases in Vernon, Huntington Park, West Covina and other cities.

Twitter: @skarlamangla

@davidzahniser

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Copyright © 2016, Los Angeles Times

UPDATE

3:39 p.m.: This article was updated with details of the decision and additional reaction.

1:25 p.m.: This article was updated with background and additional comments from Richard Alarcon.

This article was first posted at 1:05 p.m.

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