No ‘Outrageous’ Conduct; Penn Trial Starts Monday

A state appellate court Thursday summarily rejected Sagon Penn’s plea for a dismissal of all charges against him, clearing the way for the Southeast San Diego man’s retrial beginning next week on charges of shooting two police officers and a civilian observer.

The 4th District Court of Appeal refused to overturn a finding last week by San Diego County Superior Court Judge Ben W. Hamrick that prosecutors did not engage in “outrageous governmental conduct” during Penn’s first trial.

A Superior Court jury in late June cleared Penn, 24, of murder charges in the shooting death of San Diego Police Agent Thomas Riggs and of attempted murder charges in the wounding of Agent Donovan Jacobs.

On Thursday, a three-judge panel of the appellate court issued a one-sentence decision declining to dismiss the remaining charges against Penn. Prosecutors said they expect no further delays of Penn’s retrial, which is scheduled to begin Monday afternoon with jury selection.

Penn remains accused of voluntary manslaughter in Riggs’ death, attempted murder in the shooting of civilian ride-along Sara Pina-Ruiz, and attempted voluntary manslaughter and assault in the wounding of Jacobs during a confrontation March 31, 1985, in Encanto. Penn contends Jacobs instigated the dispute.

“We’ve been ready,” said Deputy Dist. Atty. Michael Carpenter, who prosecuted Penn in the initial, four-month trial and will be the lead prosecutor in the retrial. “We’re ready to go on Monday.”

Defense attorney Milton J. Silverman had asked Hamrick, and then the appellate court, to throw out the remaining charges against Penn. He argued that prosecutors wrongfully withheld from him the transcript of a taped 1978 Police Academy disciplinary interview in which three sergeants upbraided Jacobs for impulsive, hostile behavior. Silverman also alleged that the district attorney’s office broke a promise to Hamrick not to investigate the conduct of juror Vernell Hardy during the trial.

Hamrick ruled last week that, while the prosecutors’ conduct may have been wrong, it did not prejudice the case against Penn. The appellate decision let Hamrick’s ruling stand.

Silverman, who could not be reached Thursday for comment, could take the appeal to the California Supreme Court. But Steve Casey, a spokesman for the district attorney’s office, said that even if there is a further appeal, it is unlikely that the retrial will be delayed.

Casey said prosecutors were pleased with, but not surprised by, the appellate judges’ ruling.

“We believe that’s what the result ought to be,” he said. “Now we can set about the business of the retrial and leave these extraneous issues aside.”

Superior Court Judge David M. Gill will preside at the retrial, under a directive issued Thursday by Judge Richard D. Huffman, who supervises the criminal courts.

Huffman said it is not unusual to substitute judges before the retrial of a case. Gill, a former prosecutor and Municipal Court judge elected to the Superior Court bench in 1978, was chosen to preside in the case after consultation with prosecutors and Silverman, Huffman said.

Carpenter declined to say whether the prosecution would alter its strategy in the retrial. Jurors in the first trial found Penn innocent of the most serious charges and voted overwhelmingly for his acquittal on the remaining counts--without reaching verdicts.

Because of the extensive publicity given the first trial, Casey said he expects that it will take longer to select a jury for the retrial than the two weeks needed in the initial proceeding.